Chaudhuri v. The Regents of the University of Cal. CA2/1 ( 2022 )

Filed 2/1/22 Chaudhuri v. The Regents of the University of Cal. CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
GAUTAM CHAUDHURI, B307486
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. 20STCP00054)
THE REGENTS OF THE
UNIVERSITY OF
CALIFORNIA et al.,
Defendants and
Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Mitchell L. Beckloff, Judge. Affirmed.
Leader Berkon Colao & Silverstein, Arthur I. Willner;
Krane & Smith, Marc Smith, and Daniel L. Reback for Plaintiff
and Appellant.
Reed Smith, Raymond A. Cardozo, Kathryn M. Bayes; and
Katharine Essick for Defendants and Respondents.
____________________________
SUMMARY
In November 2015, the Vice Chancellor for Academic
Personnel of the University of California, Los Angeles filed a
formal complaint with the university’s Committee on Privilege &
Tenure (the Committee) against Gautam Chaudhuri based on a
2013 complaint alleging sexual harassment and a subsequent
investigation finding the complainant’s account credible. The
Committee heard the matter in June 2016 and issued findings
and disciplinary recommendations to the university’s Chancellor
at the end of January 2017. The university’s Chancellor accepted
the Committee’s recommendations, imposed discipline, and
recommended imposition of discipline by the university’s
President, as well.
In February 2018, Chaudhuri filed a petition for writ of
administrative mandamus under Code of Civil Procedure section
1094.5 alleging, among other arguments, that the evidence in the
administrative record was insufficient to support the Committee’s
findings against him.1 The trial court agreed with Chaudhuri
regarding the sufficiency of the evidence in the administrative
record, granted the petition, entered judgment for Chaudhuri on
the writ petition, and issued a writ commanding the university to
“set aside the [Committee’s] findings and recommendations” and
its “acceptance and imposition of all sanctions . . . .” The trial
court did not state that it was remanding the matter to any
university authority or committee other than to order the
university to comply with the writ’s terms.
Further statutory references are to the Code of Civil
1
Procedure unless otherwise specified.
2
In July 2019, the Vice Chancellor for Academic Personnel
notified Chaudhuri that it had received the notice of entry of
judgment and explained the steps it was taking to comply with
the trial court’s writ. In the same letter, the Vice Chancellor
advised Chaudhuri that he would “notify the Committee that the
Administration seeks to schedule a new hearing date as soon as
possible,” and that at the “renewed hearing, the Administration
will present evidence that meets the concerns expressed by the
[trial] court.”
The Committee set the matter for a second evidentiary
hearing in February 2020. In January 2020, Chaudhuri filed in
the trial court a petition for writ of prohibition requesting that
the trial court prohibit the Committee from conducting a second
evidentiary hearing. The trial court heard the matter in March
2020, and in May issued an order denying the petition and
entered judgment for the university.
On this appeal, Chaudhuri argues that the trial court erred
when it declined to prohibit the Committee from holding a second
evidentiary hearing regarding Chaudhuri’s alleged sexual
harassment. As we explain, we agree with the trial court’s
analysis and conclude that nothing in the judgment or writ of
mandate setting aside the Committee’s findings and
recommendations for insufficiency of the evidence bars the
Committee from conducting a second hearing on the merits of the
allegations against Chaudhuri. We will affirm the trial court’s
judgment.
BACKGROUND
A. Administrative Proceedings
Gautam Chaudhuri is a tenured professor of medicine and
chair of the Department of Obstetrics and Gynecology at the
3
UCLA David Geffen School of Medicine. On May 13, 2013, the
university’s Sexual Harassment and Title IX Officer notified
Chaudhuri that it had received a report that he had sexually
harassed E.B.,2 the woman who worked as his executive assistant
from 2009 to 2013. The notice stated that the Vice Chancellor for
Academic Personnel and the Academic Senate’s Charges
Committee had asked for a fact-finding investigation regarding
the allegations. It also informed Chaudhuri: “Retaliation is
forbidden by law and University policy. Retaliation includes any
adverse action that would discourage someone from making a
good faith report of suspected discrimination. You must refrain
from taking any retaliatory action.”
The investigation was conducted by a company retained by
the university. During the investigation, the investigator learned
of an earlier complaint that had been filed against Chaudhuri. In
2008, K.B., who was serving as Chaudhuri’s administrative
assistant, reported Chaudhuri to the university’s human
resources department and the Chief Administrative Officer of the
Department of Obstetrics and Gynecology complaining of sexual
2 California Rules of Court, rule 8.90(b) instructs us to
consider so as “[t]o protect personal privacy interests” referring to
certain individuals by either first name and last initial or by
initials only. The list of persons to which this applies includes
“[p]ersons in other circumstances in which personal privacy
interests support not using the person’s name.” (Cal. Rules of
Court, rule 8.90(b)(10).) We have used initials of the
complainants in this matter, both of whom cited personal privacy
concerns as deterrents to their participation in the
administrative proceedings, in order to protect their personal
privacy interests.
4
harassment. The record indicates that K.B. resigned four months
after her initial complaint because, she reported, the harassment
continued.
On March 9, 2015, a university Title IX Complaint Review
Officer notified Chaudhuri by letter that the investigation had
been completed. On behalf of the UCLA Office of Sexual
Harassment Prevention, the complaint review officer informed
Chaudhuri that the office had found “by a preponderance of the
evidence” that Chaudhuri “is RESPONSIBLE for violating the
2006 and 2014 UC Policy on Sexual Harassment by sexually
harassing his former Executive Assistant . . . by treating her in a
sexually inappropriate manner during a four-year period when
she worked as his Executive Assistant from May 2009 to May
2013, and by retaliating against [her] by speaking negatively and
revealing private information about [her] both immediately
following her complaint and during the investigation.” The letter
further notified Chaudhuri that “[i]n accordance with [the] UCLA
Academic Senate Manual[,] [the Office of Sexual Harassment
Prevention] finds PROBABLE CAUSE of a violation of the
Faculty Code of Conduct.”
Based on that letter and the investigation report that
accompanied it, the medical school’s Vice Dean filed a “formal
disciplinary charge” against Chaudhuri in the Academic Senate
Charges Committee. The Academic Senate Charges Committee
found “probable cause that Dr. Chaudhuri’s longstanding and
pervasive conduct in the way he interacted with [E.B.], and more
generally with some subordinate female employees, did create an
environment that those female employees could reasonably
perceive to be hostile in that it tended to sexualize them.” Based
on the Charges Committee’s probable cause finding, the
5
university’s Vice Chancellor for Academic Personnel filed a
formal complaint against Chaudhuri with the Academic Senate
Committee on Privilege & Tenure charging Chaudhuri with
violations of provisions the Faculty Code of Conduct that prohibit
sexual harassment and with violations of the “University Policy
on Sexual Harassment and Sexual Violence.” Specifically, the
university charged Chaudhuri with:
“1. Violating the UCLA Faculty Code of Conduct . . . ,
Academic Personnel Manual . . . , Policy 015, Part II § C.5 and §
C.7:
“a. C.5 ‘Discrimination, including harassment,
against University employees . . . for reasons of sex . . .’
“b. C.7 ‘Serious violation of University policies
governing the professional conduct of faculty . . .’
“2. Violating the ‘University Policy on Sexual Harassment
and Sexual Violence, which prohibits sexual harassment.’ ”
Between the filing of the Complaint and the Committee’s
hearing, the record indicates that “Chaudhuri gave one of the
potential witnesses $250.” He told the Committee that it was a
gift for an event that had occurred five months before he gave the
gift. The witness, however, indicated that Chaudhuri had not
attended the annual event for the last five years. Chaudhuri also
offered—also after E.B. filed her complaint—to give the same
witness “author credit on a publication, something he declined to
do on a past project they had worked on together.” Chaudhuri
told another witness that Chaudhuri believed the investigation
was “ ‘motivated by a conflict [Chaudhuri] was having with the
Dean’s office.’ ”
The record also indicates that Chaudhuri approached
members of the Committee after charges had been filed and
6
before the hearing. During the hearing, “Chaudhuri was . . .
asked ‘Have you discussed this incident with anyone on the . . .
Committee?’[ ] ‘Not a single one of us on this Committee you
have discussed this proceeding with . . . None of the doctors you
see at the Medical School?’[ ] Though Dr. Chaudhuri responded
negatively (‘No.’ ‘No.’ ‘No, not that I know. I didn’t discuss with
anyone.’),[ ] he had in fact raised the matter with two Privilege
and Tenure Committee members, indicating to one, after he was
told that the individual had just been appointed to the [Hearing]
committee that the ‘Dean is out to get me.’ ”
Before the hearing, Chaudhuri told “several people that
[E.B.] had slept with a Resident” and that “left the impression, as
one witness recounted, that [E.B.] was a ‘loose woman.’ ”
“Another witness confirmed that [Chaudhuri] was telling ‘people
that [E.B.] had a sexual relationship with one of the interns . . . .
Chaudhuri “was making [E.B.] out to be mentally unstable” and
he presented [E.B.] as “a crackpot.” ’[ ] Another witness stated
that after [E.B.] resigned, Dr. Chaudhuri ‘was critical of [E.B.’s]
work and told [the witness] that [E.B.] “had not completed some
assignment.” ’ ”
Chaudhuri knew that E.B. had been sexually assaulted in
December 2012 by someone unrelated to the university. After
E.B. complained to the university and charges were filed,
Chaudhuri “brought up [E.B.’s] assault” to three different
witnesses. “One of those witnesses said she heard from at least
four other people that Dr. Chaudhuri had talked to them about
[E.B.]—either repeating that she had been assaulted or that she
was having an affair with a Resident, or both.” And Chaudhuri
“admitted to the investigator that he ‘may have’ brought up” the
sexual assault with “several witnesses.”
7
The Committee heard the matter over three days in June
2016. Both complainants refused to testify. In its ruling on
Chaudhuri’s petition to set aside the Committee’s findings and
recommendations, the trial court included the following
information:
The university “did not call [E.B.] as a witness. Instead,
[the university] introduced testimony from [K.M.], a former
roommate of [E.B.] [Chaudhuri] testified in the proceedings and
was cross-examined by [the university]. [Chaudhuri] also called
five character witnesses as well as a clinical and forensic
psychologist to testify. The Committee also considered
documentary evidence.[3]
“On August 5, [2016], after [Chaudhuri] and [the
university] had presented their evidence to the Committee, the
Committee informed the parties it intended to call witnesses who
had not been called by either party during the evidentiary
hearing. The Committee stated it intended to seek testimony
from [E.B.] and the investigator in addition to others. Knowing
[Chaudhuri] objected to the Committee calling any witnesses, the
Committee invited [Chaudhuri] to submit ‘a full statement of
[his] objection . . . .’ [Citation.] [Chaudhuri] thereafter filed his
objection arguing, among other things, allowing the Committee to
3 “Although the Committee considered the Report of
Investigation, its author . . . did not testify. Just prior to the
hearing, [the university] sought to supplement its witness list to
include [the author]. [Chaudhuri] objected. The Committee did
not allow [the university] to supplement its witness list but noted
it had the right to call additional witnesses.”
8
call witnesses was ‘inherently unfair’ and would ‘violate[ ]
[Chaudhuri’s] rights to due process.’
“The Committee ultimately elected not to call any further
witnesses in the matter.”
On January 31, 2017, the Committee wrote a letter to the
university’s Chancellor setting forth its findings and disciplinary
recommendations. The Committee concluded that Chaudhuri
had violated the Faculty Code of Conduct and the university’s
policy prohibiting sexual harassment and had repeatedly
attempted to interfere with the investigation. The Committee
recommended that the university:
• “Take away Dr. Chaudhuri’s ability to supervise others
including, but not limited to, faculty (including input on
academic personnel cases), students, staff, postdocs,
researchers, and residents.[4]
• “Impose a permanent ‘Curtailment of Emeritus Status,’[ ]
which would allow him to hold the title of Emeritus upon
retirement, but would preclude his ability to serve in any
position with supervisory responsibilities following retirement,
including any recall position.
• “If Dr. Chaudhuri opts not to retire immediately, [the
Committee] recommend[ed] permanent demotion[ ] from
‘Further Above Scale’ to Full Professor Step IX (relinquishing
his right to use ‘Distinguished Professor’).” (Fns. omitted.)
The university’s Chancellor and President accepted the
recommendations and imposed the sanctions.
4Chaudhuri was to be allowed to continue “public
supervision of residents in the clinic.”
9
B. The First Writ Petition
Chaudhuri petitioned the trial court for a writ of mandate
ordering the university to set aside the Committee’s findings and
recommendations and to restore him to his “positions and
condition” as though the university had not imposed sanctions
based on the Committee’s findings and recommendations.
Chaudhuri challenged the Committee’s conclusions on two
grounds; he contended that he had been deprived of a fair
hearing because he “was denied the right to confront his accuser,”
and he argued that the evidence upon which the Committee
based its findings and recommendations was insufficient to
support those findings and recommendations.
The trial court rejected Chaudhuri’s fair hearing argument.
It agreed “in the abstract that a lack of ability to confront an
accuser through some process in an administrative hearing may
be problematic and might raise fairness concerns.” It noted,
however, that the university lacked the power to subpoena E.B.,
or any other witness or complainant not in its employ, or to
otherwise compel them to attend the Committee hearing.
According to the trial court, Chaudhuri “argued to the Committee
that if the Committee called [E.B.] and others to testify . . . , the
Committee would ‘violate[]’ [Chaudhuri’s] ‘rights to fair and
equitable treatment.’ [Citation.] Indeed, [Chaudhuri] argued if
the Committee called any witnesses after [Chaudhuri] and [the
university] had completed their cases before it, the Committee
would ‘violate[] [Chaudhuri’s] right to fair procedures and due
process.’ ” The trial court explained its “fair hearing” conclusion:
“[Chaudhuri] now argues before this court he was denied his
opportunity to confront his accuser and the investigator. Yet,
when the Committee took action which had the potential to
10
provide[ Chaudhuri] with the opportunity to examine both [E.B.]
and the investigator, [Chadhuri] objected on fairness and due
process grounds. [Chaudhuri’s] inconsistent position with the
Committee undermines his fairness claim here.”
The trial court nevertheless concluded that an abuse of
discretion existed under section 1094.5, subdivision (b) because
the evidence before the Committee was insufficient to support its
findings. The trial court’s conclusion was driven not by the
substance of the evidence, but by what the trial court termed its
“character.” The trial court noted that “[n]o percipient witness
testified she was sexually harassed by [Chaudhuri].” E.B.’s
former roommate testified about statements E.B. had made
regarding Chaudhuri and a variety of incidents that drove the
Committee’s findings. Evidence about a second complainant,
K.B., who was Chaudhuri’s Executive Assistant in 2008, was
introduced through documents only. Both E.B. and K.B. were
invited to attend and testify, but both declined. Although the
trial court acknowledged that the Committee was not bound by
the Evidence Code, it found significant that “[w]ith the exception
of [Chaudhuri], all of the evidence before the [Committee]
concerning the relationship between [Chaudhuri] and [E.B.]
and/or [K.B.] is all hearsay. Other than [Chaudhuri], there was
no percipient witness testimony.”
Based on the nature of the evidence before the Committee,
the trial court ruled that the evidence was insufficient to support
the Committee’s findings against Chaudhuri and granted his writ
petition. The trial court entered judgment for Chaudhuri and
issued a writ commanding the university to “set aside the
findings and recommendations by the Committee . . . and [the
11
university’s] acceptance and imposition of all sanctions based
upon.”
Neither the trial court’s ruling, judgment, nor writ
expressly provided that it was remanding the matter to the
university for further proceedings other than compliance with the
terms of the writ.
C. The Second Writ Petition
In July 2019, following the trial court’s May 2019
judgment, the university’s Vice Chancellor for Academic
Personnel notified Chaudhuri that the university was complying
with the trial court’s writ. The letter from the Vice Chancellor to
Chaudhuri also stated: “I will notify the Committee that the
Administration seeks to schedule a new hearing date as soon as
possible. At the renewed hearing, the Administration will
present evidence that meets the concerns expressed by the court.”
The Committee set the renewed evidentiary hearing for
February 2020. In January 2020, Chaudhuri petitioned the trial
court for a writ prohibiting the Committee from commencing a
second evidentiary hearing and ordering the Committee to
dismiss proceedings against Chaudhuri. The trial court stayed
the administrative proceedings pending resolution of the writ
petition.
Chaudhuri posited the same arguments in the trial court
he advances here. He argued that res judicata and collateral
estoppel barred the university from holding a second evidentiary
hearing, that a second evidentiary hearing would violate his
rights to due process, and that absent an explicit remand from
the trial court after his first writ petition, the university has no
discretion to conduct a second or renewed hearing on the same
allegations at issue in the first. The trial court rejected each of
12
these arguments in turn, denied Chaudhuri’s petition for writ of
prohibition, entered judgment on the writ petition in favor of the
university, and extended the stay of administrative proceeding
pending expiration of time to file a notice of appeal.
Chaudhuri filed a timely notice of appeal.
After the trial court’s stay expired by the judgments’ terms,
the university again set the matter for a renewed hearing.
Chaudhuri petitioned this court for a writ of supersedeas. We
granted the petition and stayed the administrative proceedings
pending resolution of this appeal.
DISCUSSION
Chaudhuri contends that the trial court erroneously denied
his petition to prohibit the university from holding a second
evidentiary hearing on the same charges that were at issue in the
first. The primary focus of Chaudhuri’s argument is that when
the trial court granted Chaudhuri’s petition for a writ of
mandamus and set aside the Committee’s findings and
recommendations for insufficiency of the evidence, it could have
but did not remand the matter to the university for further
proceedings, but instead merely to carry out the terms of the
writ. Chaudhuri also contends that the trial court’s judgment on
his petition for writ of mandate bars a second hearing by the
Committee because of res judicata principles. Finally, Chaudhuri
contends that allowing the Committee to hear the matter again
would deprive him of due process.
A. Post-Judgment Remand
1. Carlton & Section 1094.5
Chaudhuri contends that the trial court erred when it
denied his petition for a writ to prohibit the Committee from
hearing a second time the allegations against him regarding
13
sexual harassment of his Executive Assistants from 2008 to 2013.
Chaudhuri contends that if the trial court had intended to allow
the Committee to hold a second evidentiary hearing following the
judgment on Chaudhuri’s first writ petition, it could have done so
under the terms of section 1094.5, subdivision (f). Because it did
not do so, Chaudhuri argues, there is no authority permitting the
university to have the charges heard administratively a second
time.
Chaudhuri bases his argument in part on the statutory text
of section 1094.5, subdivision (f), which states: “The court shall
enter judgment either commanding respondent to set aside the
order or decision, or denying the writ. Where the judgment
commands that the order or decision be set aside, it may order
the reconsideration of the case in light of the court’s opinion and
judgment and may order respondent to take such further action
as is specially enjoined upon it by law, but the judgment shall not
limit or control in any way the discretion legally vested in the
respondent.”
Emphasizing the word “may” in section 1094.5, subdivision
(f), Chaudhuri contends that the trial court had discretion to
expressly remand the matter after judgment on his petition for
writ of mandate. The absence of language in the judgment or the
writ providing for further proceedings bars those further
proceedings, according to Chaudhuri.
The trial court disagreed. The trial court concluded that it
was bound by Carlton v. Department of Motor Vehicles (1988) 203
Cal.App.3d 1428 (Carlton).
In Carlton, the DMV had “found Carlton to be a negligent
operator of a motor vehicle and ordered his license suspended.
The suspension was stayed and Carlton was placed on probation.
14
Under the terms of his probation, Carlton was required to
‘remain free from traffic accident responsibility.’ [¶] While on
probation, Carlton was involved in a traffic accident. No citation
was issued to Carlton but the police report on the accident sent to
DMV stated that in the reporting officer’s opinion Carlton was
‘most responsible’ for the accident. . . . DMV revoked Carlton’s
probation and suspended his driver’s license solely on the basis of
the opinion expressed in the accident report that Carlton was
responsible for the accident. [¶] Carlton requested a formal
hearing . . . [and] [t]he only evidence at the hearing relevant to
the question whether Carlton had violated a condition of his
probation was a computer printout of his driving record which
contained the opinion expressed in the accident report that
Carlton was responsible for the accident. . . . Solely on this
evidence, the hearing officer upheld the revocation of probation
and suspension of Carlton’s license.” (Carlton, supra, 203
Cal.App.3d at pp. 1431-1432.) The trial court concluded that the
evidence produced at Carlton’s hearing was insufficient to
support the decision and issued a writ ordering the DMV to set
aside its decision. (Id. at p. 1432.)
One of DMV’s contentions on appeal was that the trial
court “erred in not specifically remanding the matter to the DMV
for a new hearing.” (Carlton, supra, 203 Cal.App.3d at p. 1434.)
The Court of Appeal rejected the DMV’s contention. “Where an
administrative decision is set aside for insufficiency of the
evidence it is customary to remand the matter to the agency for a
new hearing [citations] except in the rare case where as a matter
of law no evidence could support the agency’s decision.
[Citation.]” (Ibid.) The court explained that it was “conceivable
the DMV could produce competent evidence sufficient to establish
15
Carlton was responsible for the accident,” and that “[n]othing in
the writ of mandate precludes it from doing so.” (Id. at pp. 1434-
1435.) “The writ merely orders the DMV to set aside its decision
revoking Carlton’s probation and suspending his license and to
reinstate Carlton’s license as it existed immediately prior to that
suspension. In other words, the DMV is to reinstate Carlton’s
probationary status pending further proceedings as the DMV
may choose to initiate.” (Id. at p. 1435.)
We see no meaningful distinction between the procedural
posture of Carlton and this matter. Where the trial court’s
judgment was silent, the trial court did not err by failing to
expressly remand the matter to the agency because the agency
was already free to conduct further proceedings about the same
question after complying with the terms of the trial court’s writ.
The writ did no more than place the petitioner back in the
position he was in before the agency’s hearing began based on the
sufficiency of the type of evidence the agency produced to support
the agency’s conclusion. And the language of section 1094.5,
subdivision (f) is the same today as it was when Carlton was
decided. (See Voices of the Wetlands v. State Water Resources
Control Bd. (2011) 52 Cal.4th 499, 526 (Wetlands).)
Chaudhuri contends that this case is different from Carlton
because Carlton involved a driver’s license and this case involves
“disciplinary or punitive sanctions” implicating “due process
concerns.” We address that contention below with Chaudhuri’s
general due process argument.
Chaudhuri also argues that this case differs from Carlton
because in Carlton, the DMV specifically requested a remand and
the trial court refused to remand the matter. To achieve a
remand, then, Chaudhuri’s argument follows, the DMV had to
16
raise the matter on appeal. By not requesting a remand in the
trial court, Chaudhuri contends, the university has forfeited its
ability to do anything on remand other than follow the terms of
the trial court’s writ of mandate that favor him. We reject that
contention.
Carlton’s conclusion that the trial court did not err when it
declined to specifically remand the matter because the DMV
retained the right to rehear the matter after the writ issued
would mean nothing if we interpreted Carlton as Chaudhuri
urges. Carlton affirmed a trial court judgment notwithstanding
the fact that it disagreed with the trial court’s presumptive denial
of a remand (or reconsideration) request under section 1094.5,
subdivision (f) because the agency retained the right to rehear
the matter after issuance of the writ regardless of the trial court’s
refusal to expressly remand.
Although Wetlands is procedurally distinguishable, and
therefore not directly on point, the Supreme Court did confirm, in
dicta, that the approach Carlton adopted was correct. In
Wetlands, the trial court concluded that the agency’s decision was
“not sufficiently supported by the original administrative record.
The only possible cure for such a deficiency,” the Supreme Court
said, “is the agency’s reconsideration of its decision on the basis of
additional evidence.” (Wetlands, supra, 52 Cal.4th at p. 531,
original italics.) The Supreme Court instructed that the trial
court had the option under section 1094.5, subdivision (f) to order
the agency to reconsider its determination “in light of” the trial
court’s judicial determination—“i.e., a reconsideration in which
the agency may entertain all the additional evidence [the trial
court concluded was missing] to support its new decision.”
(Wetlands, at p. 531.)
17
The Supreme Court said that, as an alternative to focusing
the trial court as allowed by section 1094.5, subdivision (f), the
trial court could have simply “vacated” the agency’s decision. In
that case, new agency proceedings on the same questions could
have been initiated free from the trial court’s instructions about
what evidence should be considered. (Wetlands, supra, 52
Cal.4th at p. 531.)
The Supreme Court appears to have read section 1094.5,
subdivision (f) not as foreclosing agency reconsideration if not
expressly mentioned in a trial court’s judgment, but rather on
how agency reconsideration would proceed if the trial court
expressly referred to agency reconsideration. Section 1094.5,
subdivision (f) states that “[w]here the [trial court’s] judgment
commands that the [administrative] order or decision be set
aside, [the trial court] may order the reconsideration of the case
in light of the court’s opinion and judgment . . . .” (Italics added.)
The Supreme Court focused on the words “in light of the court’s
opinion and judgment” in section 1094.5. We also find that
language significant. Additionally, we view section 1094.5,
subdivision (f)’s last clause as equally significant: “the judgment
shall not limit or control in any way the discretion legally vested
in the respondent.”
The statutory language, Carlton, and Wetlands all lead us
to conclude that subdivision (f) allows the trial court to focus
administrative reconsideration by, in its judgment, “order[ing]
the reconsideration of the case in light of the court’s opinion and
judgment.” (§ 1094.5, subd. (f), italics added.) Or the trial court
may remain silent regarding reconsideration, which allows an
agency to act with “the discretion legally vested” in the agency
after complying with the writ.
18
2. Due Process
Without specifying how, Chaudhuri also contends that
allowing the Committee to conduct further proceedings would
deprive him of due process. Chaudhuri contends that cases
allowing remand or ordering agency reconsideration under
section 1094.5, subdivision (f) are inapposite because the nature
of the substantive questions at issue are different. It is different,
Chaudhuri contends, to remand a case for agency reconsideration
where the case involves a permit or license, as in Carlton and
Wetlands, than it is to allow the agency to reconsider a case
involving public employment or a reduction in pay grade.
We have found no case, and Chaudhuri directs us to none,
deciding whether a second hearing after a trial court vacates an
administrative order would violate due process principles. We
turn to that question.
“Under the California Constitution, a person may not be
deprived of life, liberty, or property without due process of law.
(Cal. Const., art. I, § 7, subd. (a).) ‘The concept of “due process of
law” guarantees both procedural and substantive rights.’ ”
(Bottini v. City of San Diego (2018) 27 Cal.App.5th 281, 287
(Bottini).)
Chaudhuri’s briefing does not state whether he is
advancing a procedural or substantive due process argument
against the Regents, or both.5
5Chaudhuri cites no case in his due process arguments
here that contains a substantive due process analysis. Nor does
he provide either argument or authority supporting a substantive
due process analysis. Chaudhuri’s briefs fail even to make an
argument regarding the appropriate standard of review if what
19
The cases Chaudhuri cites all deal with fundamental
property interests protected by procedural due process. (See
Brown v. City of Los Angeles (2002) 102 Cal.App.4th 155, 169; Ng
v. State Personnel Bd. (1977) 68 Cal.App.3d 600, 605; Board of
Regents of State Colleges v. Roth (1972) 408 U.S. 564, 569-570;
Millview County Water Dist. v. State Water Resources Control Bd.
(2014) 229 Cal.App.4th 879, 908-909.) But Chaudhuri does not
contend that the university denied him notice and an opportunity
to be heard at any point or that a second hearing would deny him
“notice and an opportunity to be heard before depriving [him] of a
protected liberty or property interest—the foundational
requirements of procedural due process.” (Bottini, supra, 27
Cal.App.5th at p. 287.) We therefore construe Chaudhuri’s
arguments as sounding in substantive due process.6 (See ibid.)
“Substantive due process protects against arbitrary
government action. [Citation.] A substantive due process
violation requires more than ‘ordinary government error,’ and the
‘arbitrary and capricious’ standard applicable in other contexts is
a lower threshold than that required to establish a substantive
due process violation. [Citation.] A substantive due process
violation requires some form of outrageous or egregious conduct
he alleges is a violation of substantive due process. Because we
have been unable to discern a cognizable procedural due process
argument, we are left to analyze Chaudhuri’s vague due process
contentions as a substantive due process challenge.
6 Chaudhuri’s counsel first invoked substantive due process
in this matter in response to a question from the bench during
oral argument on this appeal.
20
constituting ‘a true abuse of power.’ ” (Las Lomas Land Co., LLC
v. City of Los Angeles (2009) 177 Cal.App.4th 837, 855-856.)
“To determine whether a person’s . . . interest for purposes
of substantive due process has been violated, the court must
balance his or her . . . interest against the relevant state
interests. [Citation.] Where the state infringes on a fundamental
constitutional right, strict scrutiny applies; otherwise, the
rational basis test applies. [Citation.] A law [or government
action] subject to strict scrutiny is upheld only if it is narrowly
tailored to promote a compelling governmental interest.
[Citation.] Under rational-basis review, by contrast, a law [or
government action] need only bear a rational relationship to a
legitimate governmental interest.” (Love v. State Dept. of
Education (2018) 29 Cal.App.5th 980, 989, fn. omitted.)
Because our review of an asserted substantive due process
challenge in this context turns on the nature of the right or
interest asserted, Chaudhuri’s citation to cases that deem public
employment a “fundamental” right is significant. If the challenge
is a substantive due process challenge, it is also inapposite.
A “fundamental right for purposes of the judicial standard
of review of administrative decisions” is different than “a
fundamental right for purposes of constitutional analysis.”
(Graham v. Kirkwood Meadows Public Util. Dist. (1994) 21
Cal.App.4th 1631, 1642-1643 (Graham).) “The distinction was
explained in Berlinghieri v. Department of Motor Vehicles (1983)
33 Cal.3d 392 . . ., which held the right to retain a driver’s license
was a ‘fundamental’ right for purposes of independent judicial
review of an administrative decision to suspend the license. In
explaining that its decision did not alter its prior holding that
such right was not a fundamental right invoking strict scrutiny
21
review for constitutional analysis purposes, the Supreme Court
stressed an important distinction: ‘ . . . the standard of review
question . . . relates to the appropriate relationship between
administrative and judicial adjudicatory decisions, and does not
concern the constitutional legitimacy or validity of legislative
policy judgments at all. Thus, . . . the fundamental right category
does not identify areas in which substantive legislative
judgments are in any manner constitutionally suspect or justify
unusual judicial scrutiny; rather, that category simply
encompasses those quasi-judicial administrative decisions that
have an impact on the individual sufficiently vital . . . to compel a
full and independent review by the court. [Citation.] [¶] Indeed,
. . . the applicability of the independent judgment standard of
review does not in any sense suggest that legislative measures
pertaining to the individual interest at issue are properly subject
to strict scrutiny review. [Citation.]’ [Citation.]
“The Supreme Court cautioned against any ‘blurring of two
separate and distinct senses in which the term “fundamental” is
used. [¶] There is little similarity between the analysis applied
in determining (1) whether a right is a ‘fundamental right’ for
equal protection/due process purposes on the one hand, and (2)
which scrutiny is applicable for administrative review purposes,
on the other. The principle of “fundamentality” differs depending
on the context or analysis within which the concept arises. Thus,
for example, when determining which rights are “fundamental”
for due process purposes, a court’s attention focuses primarily on
whether the right (1) is specifically guaranteed by the
Constitution, (2) affects the integrity of the political process, or
(3) has a disproportionate impact upon a discrete and insular
minority.’ ” (Graham, supra, 21 Cal.App.4th at p. 1643.)
22
For purposes of substantive due process, “there is no
fundamental constitutional right to work for, or to have
continued employment with, a particular public or private
employer.” (Ibid.)
The question, then, for our purposes, is whether allowing
the university to hold a second hearing regarding the merits of
the charges against Chaudhuri “bears ‘some rational relationship
to a conceivable legitimate state purpose.’ ” (Graham, supra, 21
Cal.App.4th at p. 1646.) “The burden is on the party challenging
the constitutionality of the policy [or state action] to show that it
bears no rational relationship to a legitimate governmental
purpose.” (Ibid.)
Chaudhuri’s briefing did not distinguish between
substantive and procedural due process, and made no effort to
demonstrate that a rehearing could bear no rational relationship
to a legitimate governmental purpose. Our inquiry could end
there. Nevertheless, we examine the question on its merits in the
context of this matter.
Here, a rehearing on the merits could conceivably relate to
multiple legitimate public interests. As the Regents explained in
their briefing here, the university has an “obligation to address
sexual misconduct in its community and the debilitating effect
that such misconduct has on its victims and on the university’s
mission . . . .” Beyond that, public employers, as private
employers, are entitled to some flexibility in the way that they
manage personnel matters. The university’s inability to
subpoena witnesses, for example, coupled with Chaudhuri’s
campaign to retaliate against and discredit the complaining
witness, left the university after the initial hearing with only
hearsay that the trial court found insufficient.
23
We also find it significant in the context of this matter that
Chaudhuri interfered with the investigation and hearing as the
record indicates. Administrative proceedings free from
interference and complainants’ ability to report alleged sexual
harassment free from retaliation are legitimate interests that are
conceivably related to a rehearing in this matter with testimony
from percipient witnesses.
We do not find persuasive Chaudhuri’s argument that he
may be subject to countless seriatim administrative proceedings.
Chaudhuri relied on Ashford v. Culver City Unified School Dist.
(2005) 130 Cal.App.4th 344 (Ashford), Newman v. State Personnel
Bd. (1992) 10 Cal.App.4th 41 (Newman), and dicta in Wetlands to
argue that a second hearing is equivalent to never-ending
hearings on the same question until the university gets the result
it wants. Indeed, those cases support the opposite conclusion.
In Ashford and Newman, each court concluded that no
agency reconsideration on the merits was warranted. But neither
did so on due process grounds. Ashford did so because the agency
“had made no claim . . . that it in fact has any new evidence that
it could present at such a hearing.” (Ashford, supra, 130
Cal.App.4th at p. 354.) And Newman did so because it concluded
that the agency’s first decision had been based on the only
evidence the agency would have been allowed to consider—no
evidence existed that the agency could consider on remand.
(Newman, supra, 10 Cal.App.4th at p. 50.)
In contrast to both Newman and Ashford, the trial court’s
ruling on Chaudhuri’s petition for writ of mandate—a ruling that
took issue with the form of the evidence produced at the first
hearing, and not its substance—clarifies what form the evidence
needs to take in a second hearing. The university has stated that
24
it will produce the evidence in a form necessary to address the
trial court’s concerns. Indeed, the university filed a declaration
in the trial court that stated: “The witnesses that have now
agreed to testify at a new hearing represent the universe of
percipient witnesses knowledgeable of the facts giving rise to the
disciplinary charges. Their testimony will constitute the best
evidence the University can muster.” That representation
appears to address Chaudhuri’s concern about multiple
rehearings and brings a single rehearing with live percipient
witness testimony into strict conformance with Ashford and
Newman.
Chaudhuri has demonstrated—and we have found—no
substantive due process violation presented by a second
administrative hearing in this matter.
B. Res Judicata
Chaudhuri argues that the trial court erred when it
concluded that res judicata does not bar renewed Committee
proceedings. When it entered judgment on Chaudhuri’s petition
for writ of mandate, he posits, the trial court “concluded the
matter between the parties, and the only action left was for [the
university] to comply with the terms of the writ.” The argument’s
thread is that the trial court’s judgment based on sufficiency of
the evidence to support the administrative findings forecloses any
administrative opportunity to produce evidence sufficient to
support any administrative findings regarding the allegations
against Chaudhuri.
We disagree with Chaudhuri’s contentions.
“ ‘The prerequisite elements for applying [res judicata] to
either an entire cause of action or one or more issues are the
same: (1) A claim or issue raised in the present action is identical
25
to a claim or issue litigated in a prior proceeding; (2) the prior
proceeding resulted in a final judgment on the merits; and (3) the
party against whom the doctrine is being asserted was a party or
in privity with a party to the prior proceeding.’ ” (People v.
Barragan (2004) 32 Cal.4th 236, 253.) The arguments here
center on the first of the three elements.
Chaudhuri’s argument conflates the issues involved in the
administrative proceeding with the issues the trial court
considered on his petition for writ of mandate. Indeed, in his
briefing, Chaudhuri clouds the question by arguing that the trial
court’s judgment operates as a bar to further proceedings by the
Committee by explaining that “the claim to be decided in the
second disciplinary hearing—whether Dr. Chaudhuri sexually
harassed [E.B.]—is identical to the claim which was adjudicated
in the first hearing.”
But it is not the results of the first hearing that Chaudhuri
attempts to use to bar a second hearing. It is the judgment on his
writ petition.
The trial court’s judgment on Chaudhuri’s petition for writ
of mandate adjudicated only whether the evidence in the
administrative record was sufficient to support the
administrative findings, and not whether Chaudhuri had
sexually harassed either of the complainants. The issues in the
two proceedings were not identical. The trial court explained as
much at the hearing in this matter: “My decision [on the first
writ petition] was reviewing whether or not there was sufficient
evidence below. And it’s not the same decision that the agency
made.”
The agency did not then and does not now challenge the
trial court’s conclusion or issuance of a peremptory writ of
26
mandate. Whether the evidence was sufficient to support the
administrative decision after the June 2016 hearing is no longer
at issue in any proceeding. But neither does that operate as a
bar to the Committee rehearing the matter based on whatever
evidence may be produced at the renewed hearing.
DISPOSITION
The stay we imposed pending the outcome of this appeal is
dissolved. The trial court’s judgment is affirmed. Respondent is
entitled to its costs on appeal.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
BENDIX, Acting P. J.
CRANDALL, J.*
*Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
27