Case Name: Balakanapathy Rajaratnam v. The Board of Trustees of the Leland Stanford Junior University, et al.
Case No.: 18-CV-323960

Currently before the Court is the demurrer by respondents The Board of Trustees of the Leland Stanford Junior University (“Stanford”), Persis Drell (“Drell”), and Marc Tessier-Lavigne (“Tessier-Lavigne”) (collectively, “Respondents”) to the amended verified petition for writ of mandate or administrative mandamus (“Amended Petition”) of petitioner Balakanapathy Rajaratnam (“Petitioner”).

Factual and Procedural Background

This case arises out of Stanford’s alleged failure to follow its written policies regarding faculty member disciplinary proceedings with respect to Petitioner, an assistant professor of statistics and earth systems science. (Amended Petition, ¶ 1.)

Petitioner filed his original verified petition for writ of mandate or administrative mandamus (“Petition”) on February 20, 2018.

Shortly thereafter, Respondents filed a demurrer to the Petition. In addition, Stanford filed a motion for sanctions against Petitioner and Petitioner’s counsel pursuant to Code of Civil Procedure section 128.7.

On June 13, 2018, Petitioner filed the operative Amended Petition.

Stanford’s motion for sanctions proceeded to hearing on June 26, 2018. The following day, the Court issued its order granting Stanford’s motion. As is relevant here, the court order struck “all of paragraph 5 of the original Petition.” (Order dated June 27, 2018, p. 2:9-10.) The court order also struck “the new allegation [in the Amended Petition] … (beginning on line 21),” which states “that an AMS investigating committee made certain ‘findings’.” (Id. at p. 2:11-16.)

On July 17, 2018, Respondents filed the instant demurrer to the Amended Petition. Petitioner filed papers in opposition to the demurrer on August 15, 2018. Respondents filed a reply on August 21, 2018.

Discussion

Respondents demur to the first and second causes of action of the Amended Petition on the ground of failure to allege facts sufficient to constitute a cause of action. (See Code Civ. Proc., ¶ 430.10, subd. (e).) Stanford also demurs to the first and second causes of action of the Amended Petition on the ground of another action pending between the same parties on the same cause of action. (See Code Civ. Proc., § 430.10, subd. (c).)
I. Procedural Issue

As an initial matter, Petitioner submits declarations from Brian H. Kleiner (“Kleiner”) and Nicholas P. Jewell (“Jewell”) in support of its opposition to Respondents’ demurrer.

Respondents object to the Court’s consideration of these declarations on various evidentiary grounds and on the ground that Petitioner’s attempt to submit extrinsic evidence is improper on demurrer.

“A demurrer tests only the legal sufficiency of the pleading.” (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213-14.) Consequently, “[a] demurrer reaches only to the contents of the pleading and such matters as may be considered under the doctrine of judicial notice.” (South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 (South Shore), internal citations and quotations omitted; see also Code Civ. Proc., § 430.30, subd. (a); see Bounds v. Super. Ct. (2014) 229 Cal.App.4th 468, 477 [“ ‘[t]he hearing on demurrer may not be turned into a contested evidentiary hearing through the guise of having the court take judicial notice of affidavits, declarations, depositions, and other such material which was filed on behalf of the adverse party and which purports to contradict the allegations and contentions of the plaintiff.’ [Citation.]”].)

Because the declarations of Kleiner and Jewell may not be properly considered on demurrer, the Court declines to consider those declarations and Petitioner’s arguments based on the same.

II. Request for Judicial Notice

With their moving and reply papers, Respondents ask the Court to take judicial notice of court records filed in the cases of Balakanapathy Rajaratnam v. The Board of Trustees of the Leland Stanford Junior University, et al. (Santa Clara County Superior Court, Case No. 2015-1-CV-276252) (the “First Action”) and Balakanapathy Rajaratnam v. The Board of Trustees of the Leland Stanford Junior University (United States District Court, Northern District of California, Case No. 5:16-cv-07413-HRL).

These documents are generally proper subjects of judicial notice under Evidence Code section 452, subdivision (d). That statute states that courts may take judicial notice of “[r]ecords of any court of this state.” (Evid. Code, § 452, subd. (d).) That provision permits the trial court to “take judicial notice of the existence of judicial opinions and court documents, along with the truth of the results reached—in the documents such as orders, statements of decision, and judgments—but [the court] cannot take judicial notice of the truth of hearsay statements in decisions or court files, including pleadings, affidavits, testimony, or statements of fact.” (People v. Woodell (1998) 17 Cal.4th 448, 455.) Consequently, Court will only take judicial notice of the existence of the subject documents and the truth of the results reached in any court order. The Court will not take judicial notice of the truth of hearsay statements in those documents.

Accordingly, Respondents’ request for judicial notice is GRANTED as to the existence of the subject documents and the truth of the results reached in any court order.
III. Legal Standard

“The writ of mandate is available either to compel the performance of a ministerial act which the law specially enjoins (a remedy commonly called ‘traditional mandamus’ [citation]) or to inquire into the validity of some kinds of quasi-judicial actions of administrative agencies (commonly called ‘administrative mandamus,’ [citation]).” (Gong v. Fremont (1967) 250 Cal.App.2d 568, 571-72, citing Code Civ. Proc., §§ 1085 and 1094.5.)

Pursuant to Code of Civil Procedure section 1089, a party may respond to a petition for writ of traditional or administrative mandamus by demurrer. (See Code Civ. Proc., § 1089 [“the party upon whom the writ … has been served may make a return by demurrer”]; see also Chapman v. Super. Ct. (2005) 130 Cal.App.4th 261, 271 [“A proceeding in mandamus is generally subject to the general rules of pleading applicable to civil actions”].)

The function of a demurrer is to test the legal sufficiency of a pleading. (Trs. Of Capital Wholesale Elec. Etc. Fund v. Shearson Lehman Bros. (1990) 221 Cal.App.3d 617, 621.) Consequently, “[a] demurrer reaches only to the contents of the pleading and such matters as may be considered under the doctrine of judicial notice.” (South Shore, supra, 226 Cal.App.2d at p. 732, internal citations and quotations omitted; see also Code Civ. Proc., § 430.30, subd. (a).) “It is not the ordinary function of a demurrer to test the truth of the [ ] allegations [in the challenged pleading] or the accuracy with which [the plaintiff] describes the defendant’s conduct. [ ] Thus, [ ] the facts alleged in the pleading are deemed to be true, however improbable they may be.” (Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 958, internal citations and quotations omitted.)

IV. First Cause of Action

Respondents argue that the first cause of action for writ of mandate under Code of Civil Procedure section 1085 fails to state a claim with respect to Drell and Tessier-Lavigne because there is no allegation that Drell or Tessier-Lavigne had a mandatory ministerial duty to take a particular action.

Respondents further argue that the first cause of action for writ of mandate under Code of Civil Procedure section 1085 fails to state a claim as to Stanford because Stanford did not have a mandatory ministerial duty to “comply with its written and promulgated faculty discipline procedures set forth in the Faculty Handbook and … refrain from imposing disciplinary measures against Petitioner without affording him a fair and impartial hearing in accordance with those procedures.” (FAC, ¶ 65.) Respondents also argue that Stanford’s other alleged duty—a duty “not to deny Petitioner the right to an unbiased and impartial tenure proceeding and to unlawfully preclude Petitioner from the use and enjoyment of that right”—is not a mandatory duty because (1) a mandatory must be a specific act that a respondent is required to perform and (2) there is no allegation that Stanford was required to perform any specific act other than to apply the disciplinary procedures set forth in the Faculty Handbook.

Lastly, Respondents argue that Petitioner cannot show that he is without an adequate remedy at law because he raised the same issues in the First Action, wherein he seeks damages and injunctive relief.

Respondents’ arguments are generally well-taken. Code of Civil Procedure section 1085, traditional mandamus, is the method used to compel an administrative agency to perform a ministerial duty, e.g., to hold a hearing or to follow the steps required by the agency’s internal procedures. (Lazan v. County of Riverside (2006) 140 Cal.App.4th 453, 459-60 (Lazan); cf. Professional Engineers in California Government v. State Personnel Board (1980) 114 Cal.App.3d 101, 110, fn. 5.) “To obtain writ relief under Code of Civil Procedure section 1085, the petitioner must show there is no other plain, speedy, and adequate remedy; the respondent has a clear, present, and ministerial duty to act in a particular way; and the petitioner has a clear, present and beneficial right to performance of that duty. [Citation]” (County of San Diego v. State of California (2008) 164 Cal.App.4th 580, 593 (County of San Diego).)

“A ministerial duty is one that is required to be performed in a prescribed manner under the mandate of legal authority without the exercise of discretion or judgment.” (County of San Diego, supra, 164 Cal.App.4th at p. 593; Morris v. Harper (2001) 94 Cal.App.4th 52, 62 [a ministerial duty is an action that an administrative official or body is required to perform at the occurrence of a certain contingency].) In determining whether an action is ministerial, the critical question is whether the official or body is authorized to exercise judgment or discretion. (Glendale City Employees’ Assn., Inc. v. City of Glendale (1975) 15 Cal.3d 328, 344.) An administrative entity’s duty to act is ministerial when the controlling legal authority does not vest the entity with any discretion to determine whether the prescribed contingency has occurred or what action should be taken upon the occurrence of that contingency. (Ibid.; see also Lazan, supra, 140 Cal.App.4th at p. 460; see also Mountain Lion Found. v. Fish & Game Commission (1997) 16 Cal.4th 105, 117 [ministerial acts involve no judgment or discretion by the public official as to the wisdom or manner of carrying out the activity as the public official merely applies the law to the facts presented and uses no special discretion or judgment in reaching a decision].) If the governing authority does not require an official to act in a particular manner, no remedy in mandamus is available. (Morgan v. City of L.A. Bd. of Pension Comrs. (2000) 85 Cal.App.4th 836, 847.)

Issuance of a writ of mandate “ ‘ “is not necessarily a matter of right, but lies rather in the discretion of the court, but where one has a substantial right to protect or enforce, and this may be accomplished by such a writ, and there is no other plain, speedy and adequate remedy in the ordinary course of law, [the petitioner] is entitled as a matter of right to the writ, or perhaps more correctly, in other words, it would be an abuse of discretion to refuse it.” ’ [Citations.]” (County of San Diego, supra, 164 Cal.App.4th at p. 593.)

In the first cause of action, Petitioner alleges that Stanford had the following duties: (1) “a duty to comply with its written and promulgated faculty discipline procedures set forth in the Faculty Handbook … and to refrain from imposing disciplinary measures against Petitioner without affording him a fair and impartial hearing in accordance with those procedures”; and (2) “a duty not to deny Petitioner the right to an unbiased and impartial tenure proceeding and to unlawfully preclude Petitioner from use and enjoyment of that right.” (Amended Petition, ¶¶ 65-66.) There are no allegations in the Amended Petition that Drell or Tessier-Lavigne had a duty to act in a particular way.

Additionally, the Amended Petition identifies the Faculty Handbook and the Stanford Administrative Guide, Section 1.7.1 “Sexual Harassment,” as the authorities that provide the relevant governing rules and policies. (Amended Petition, ¶¶ 22-26.) Petitioner alleges that the Statement on Faculty Discipline within the Faculty Handbook outlines the procedures for the imposition of disciplinary measures against faculty members. (Ibid.) The Statement on Faculty Discipline is allegedly “invoked when a faculty member is charged with ‘professional conduct that is serious enough to warrant a sanction ranging from censure to dismissal from the University,” such as unethical behavior and sexual harassment. (Ibid.) Petitioner alleges that “[t]he procedure ‘applies to members of the professoriate’ and begins when charges are brought against the faculty member by the Provost.” (Ibid.) With respect to the Stanford Administrative Guide, the relevant section of sexual harassment allegedly “provides that where disciplinary procedures are initiated against a faculty member as a result of a sexual harassment complaint, the Statement on Faculty Discipline is invoked.” (Ibid.)

These allegations are insufficient to show that Respondents had a clear, present, and ministerial duty to act in the alleged way. First, as previously articulated, there are no allegations in the Amended Petition that Drell or Tessier-Lavigne had a duty to act in any particular way. Thus, with respect to Drell and Tessier-Lavigne, the Amended Petition fails to plead sufficient facts to obtain writ relief under Code of Civil Procedure section 1085.

Second, Petitioner does not identify any provision of the Faculty Handbook or the Stanford Administrative Guide that pertains to the conduct of tenure proceedings or otherwise imposes a mandatory ministerial duty on Stanford to “not to deny Petitioner the right to an unbiased and impartial tenure proceeding and to unlawfully preclude Petitioner from use and enjoyment of that right.” (Amended Petition, ¶ 66.) Consequently, the Amended Petition does not allege facts demonstrating that Stanford had the alleged ministerial duty “not to deny Petitioner the right to an unbiased and impartial tenure proceeding and to unlawfully preclude Petitioner from use and enjoyment of that right.”

Third, the cited authorities do not require Stanford to apply or follow the disciplinary procedures set forth in Faculty Handbook in this case. The Stanford Administrative Guide, Section 1.7.1 “Sexual Harassment,” does not state that the disciplinary procedures in the Statement on Faculty Discipline in the Faculty Handbook must be followed here. Instead, it states that “[r]eports of sexual harassment are taken seriously and will be dealt with promptly”; “[t]he specific action taken in any particular case depends on the nature and gravity of the conduct reported and may include intervention, mediation, investigation and the initiation of grievance and disciplinary processes”; “[i]n appropriate cases, disciplinary procedures may be initiated”; and “[f]aculty members are subject to the Statement on Faculty Discipline.” (Amended Petition, Ex. C, Sections 1 and 3.) Thus, the initiation of disciplinary procedures is discretionary. Furthermore, to the extent the individual whose conduct is in question is a faculty member, the disciplinary procedures are those described in the Statement on Faculty Discipline within the Faculty Handbook.

The Statement on Faculty Discipline within the Faculty Handbook states that, “[i]n the case of a serious violation of these standards, a faculty member may face disciplinary charges under the following procedures.” (Amended Petition, Ex. B, Section 4.3A(1).) In addition, it explicitly provides that “[t]hese disciplinary procedures are invoked when the Provost formally charges a faculty member with professional misconduct that is serious enough to warrant a sanction ranging from censure to dismissal from the University.” (Id. at Section 4.3A(2).) Therefore, the Provost has discretion to bring formal charges against a faculty member and if there are no formal charges, the procedures are not invoked. Petitioner does not allege that he was ever formally charged. In fact, Petitioner alleges that an “informal” investigation was conducted and he never received formal charges from the Provost. (Amended Petition, ¶¶ 27-28 and 33-35.)

For these reasons, the Amended Petition does not allege facts demonstrating that Stanford had the alleged ministerial duty “to comply with its written and promulgated faculty discipline procedures set forth in the Faculty Handbook … and to refrain from imposing disciplinary measures against Petitioner without affording him a fair and impartial hearing in accordance with those procedures.” (Amended Petition, ¶ 65.)

Fourth, to the extent the Amended Petition is based on Stanford’s alleged failure to comply with the disciplinary procedures set forth in the Faculty Handbook, Petitioner has an adequate legal remedy. The issues raised in the Amended Petition regarding Stanford alleged duty to comply with the disciplinary procedures set forth in the Statement on Faculty Discipline within the Faculty Handbook are the same as the issues raised in the First Action. (Respondents’ RJN, Ex. A; Amended Petition, ¶¶ 42-43[“[T]he First Amended Complaint [filed in the First Action] alleges that Stanford had violated the Statement on Faculty discipline in the following respects: imposing disciplinary sanctions against Petitioner without issuing charges against him; failing to provide Petitioner with an evidentiary hearing before the Stanford Advisory Board; failing to identify witnesses or documentary evidence against Petitioner; refusing to allow Petitioner to bring evidentiary motions of to cross-examine witnesses; failing to disclose exculpatory evidence; failing to conduct proceedings expeditiously; and failing to adhere to the burden of proof of clear and convincing evidence.”].) As Petitioner brought a civil complaint seeking redress for Stanford’s alleged failure to comply with the disciplinary procedures set forth in the Faculty Handbook, he has an adequate remedy at law.

Accordingly, the demurrer to the first cause of action is SUSTAINED, with 10 days’ leave to amend. (See City of Stockton v. Super. Ct. (2007) 42 Cal.4th 730, 747 (City of Stockton) [if the plaintiff has not had an opportunity to amend the pleading in response to a motion challenging the sufficiency of the allegations, leave to amend is liberally allowed as a matter of fairness, unless the pleading shows on its face that it is incapable of amendment].)

V. Second Cause of Action

Respondents argue that the second cause of action for writ of administrative mandamus under Code of Civil Procedure section 1094.5 fails to state a claim, in part, because Petitioner has not alleged facts demonstrating that the administrative decisions at issue in the Amended Petition (i.e., the decisions imposing sanctions against Petitioner and denying Petitioner tenure) were made as a result of a proceeding in which an evidentiary hearing is required by law or Stanford’s policies.

Respondents’ argument is well-taken. “Code of Civil Procedure section 1094.5, subdivision (a), provides administrative mandamus is available to review a decision made by an agency as a result of a proceeding in which by law (1) a hearing is required to be given, (2) evidence is required to be taken, and (3) discretion in determining the facts is vested in the agency.” (Environmental Protection Information Center v. California Dept. of Forestry and Fire Protection (2008) 44 Cal.4th 459, 520-21, internal citations omitted;
Pomona College v. Super. Ct. (1996) 45 Cal.App.4th 1716, 1729 [Code of Civil Procedure section 1094.5 expressly provides that it is the requirement of a hearing and taking of evidence that triggers the availability of mandamus review].)

In the Amended Petition, Petitioner alleges that “[b]efore disciplinary measures such as sanctions or censure may be imposed against [a] faculty member, the Statement on Faculty Discipline [in the Faculty Handbook] requires that [the faculty member] receive … a hearing before the University’s Advisory Board” and “[d]iscipline may not be imposed unless the Advisory Board finds that the University has proved the factual elements by clear and convincing evidence.” (Amended Petition, ¶1.) However, as explained above, the Statement on Faculty Discipline in the Faculty Handbook does not require Stanford to initiate and comply with its disciplinary procedures, such as a hearing, unless formal charges are brought against the faculty member. (Amended Petition, Ex. B, Sections 4.3A(1) and 4.3A(2).) Petitioner does not allege that he was ever formally charged. Moreover, Petitioner alleges that an “informal” investigation was conducted and he never received formal charges from the Provost. (Amended Petition, ¶¶ 27-28 and 33-35.) Thus, Stanford was not required to provide a hearing under the Statement on Faculty Discipline in connection with its decision to impose sanctions on Petitioner.

Furthermore, there are no allegations in the Amended Petition that Stanford was required to provide a hearing in connection with its decision to deny Petitioner tenure. Petitioner does not cite any Stanford policy or procedure stating that a hearing is required in connection with a tenure review. Petitioner merely alleges that “Stanford’s tenure policies require the departments to which Petitioner is applying for promotion to consider the tenure file, vote on promotion, and transmit the results of that vote to the Provost,” and a “faculty member whose promotion has been denied by a department may file a written appeal with the Provost, who may grant the appeal, remand the matter to the department, or refer the matter directly to the Advisory Board.” (Amended Petition, ¶ 50.) These allegations do not establish that Stanford was required to provide a hearing in connection with its decision to deny Petitioner tenure.

In opposition, Petitioner does not point to any Stanford policy or procedure providing that a hearing is required in connection with a tenure review. Rather, Petitioner argues that “courts have repeatedly ruled” that a denial of tenure “is remedied through a Writ of Administrative Mandamus.” (Opp’n., p. 9:21-24.) In support of this contention, Petitioner relies on Pomona College v. Superior Court (1996) 45 Cal.App.4th 1716 (Pomona), Pollock v. University of Southern California (2003) 112 Cal.App.4th 1416, and Gupta v. Stanford University (2004) 124 Cal.App.4th 407 (Gupta). However, in each of those cases the reviewing court reiterated the principle that administrative mandamus is available if a hearing is required by an organization’s internal rules and regulations, and it was established that the relevant policies and procedures in those cases required the provision of an evidentiary hearing. (Pomona, supra, 45 Cal.App.4th at p. 1729 [a hearing was required by the university’s handbook]; Pollock v. University of Southern California (2003) 112 Cal.App.4th 1416, 1422 [as part of its dismissal process, the university provided the employee with a hearing]; Gupta, supra, 124 Cal.App.4th 4at p. 411 [“In this case, the Stanford Judicial Charter of 1997 required an evidentiary hearing before a judicial panel to evaluate the charge of cheating. As such, mandamus is the appropriate remedy under section 1094.5.”].) Thus, those cases do not alter the foregoing analysis.

Accordingly, the demurrer to the second cause of action is SUSTAINED, with 10 days’ leave to amend. (See City of Stockton, supra, 42 Cal.4th at p. 747 [if the plaintiff has not had an opportunity to amend the pleading in response to a motion challenging the sufficiency of the allegations, leave to amend is liberally allowed as a matter of fairness, unless the pleading shows on its face that it is incapable of amendment].)