Memorandum Points and AuthoritiesCal. Super. - 6th Dist.December 8, 202010 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 200V374092 Santa Clara - Civil MATTHEW RODRIQUEZ Acting Attorney General of California BRANDON FIELDS Deputy Attorney General State Bar No. 282942 1515 Clay Street, 20th Floor P.O. Box 70550 Oakland, CA 94612-0550 Telephone: (510) 879-0752 Fax: (510) 622-2270 E-mail: Brandon.Fields@doj.ca.g0V Attorneysfor Respondent The Board ofTrustees A. Flore EineptmfiUnfiiMs PuthWGudbéfifln, County of Santa Clara, on 4/1 9/2021 3:46 PM Reviewed By: A. Floresca Case #20CV374092 Envelope: 6270359 0f the California State University (erroneously sued as The State ofCalifornia) SUPERIOR COURT OF THE STATE OF CALIFORNIA CLERK OF THE COURT Fred Rassaii, Petitioner, The Board 0f Trustees of the California State University (erroneously sued as The State of California), Respondent. Case N0. 20CV374092 RESPONDENT THE BOARD OF TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO PETITIONER FRED RASSAII’S PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS Date: May 18, 2021 Time: 9:00 am. Dept: 19 Judge: Hon. Peter H. Kirwan Trial Date: Action Filed: December 8, 2020 1 Respondent The Board 0f Trustees 0f the California State University’s Memorandum 0f Points and Authorities In Support 0fDemurrer t0 Petitioner Fred Rassaii’s Petition for Writ 0f Administrative Mandamus (20CV374092) 8C3 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS Page INTRODUCTION .......................................................................................................................... 5 STATEMENT OF FACTS ............................................................................................................. 5 I. In Rassaii’s Prior Lawsuit, This Court Upheld Rassaii’s Academic Disqualification From the Graduate Master’s Degree Program at SDSU .............. 5 II. In the Present Lawsuit, Rassaii Again Challenges His Academic Disqualification From the Same Master’s Program ................................................ 6 III. Rassaii Has Filed a Third Lawsuit, Again Challenging His Academic Disqualification From the Same Master’s Program ................................................ 7 STANDARD OF REVIEW ............................................................................................................ 7 ARGUMENT .................................................................................................................................. 8 I. The Doctrines of Claim and Issue Preclusion Bar Rassaii’s Petition Because Rassaii Could Have Litigated His Present Claims and Issues in His Prior Lawsuit Against CSU but Failed t0 D0 So .............................................. 8 A. Alternatively, Rassaii’s Petition Should Be Abated Because the Petition Raises the Same Claim in His Prior Lawsuit ............................... 10 II. CSU Does Not Owe Rassaii a Ministerial Duty of Reinstatement in Accordance with Terms Contrary to Constitutionally Permissible GPA Requirements Set Forth in the California Code 0f Regulations ............................ 10 III. The Government Code Bars Any Claim for Monetary Relief Against CSU ........ 13 CONCLUSION ............................................................................................................................. 13 2 Respondent The Board 0f Trustees 0f the California State University’s Memorandum 0f Points and Authorities In Support 0fDemurrer t0 Petitioner Fred Rassaii’s Petition for Writ 0f Administrative Mandamus (20CV374092) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Page CASES Board ofCurators 0f University ofMissouri v. Horowitz (1978) 435 U.S. 78 .................................................................................................................. 11 Bucur v. Ahmad (2016) 244 Ca1.App.4th 175 ................................................................................................. 8, 9 Doe v. Doe I (2012) 208 Ca1.App.4th 1185 ................................................................................................... 7 Donabedian v. Mercury Ins. C0. (2004) 116 Ca1.App.4th 968 ..................................................................................................... 7 Ferreira v. Keller (1970) 4 Ca1.App.3d 292 ......................................................................................................... 10 Flores v. California Dept. ofCorrections & Rehabilitation (2014) 224 Ca1.App.4th 199 ....................................................................................... 10, 11, 13 Kemper v. County ofSan Diego (2015) 242 Ca1.App.4th 1075 ............................................................................................. 9, 10 Lungren v. Deukmejian (1988) 45 Cal.3d 727 .............................................................................................................. 13 McKinney v. Santa Clara (1980) 110 Cal.App.3d 787 ....................................................................................................... 8 Paulsen v. Golden Gate University (1979) 25 Cal.3d 803 .............................................................................................................. 13 People ex rel. Younger v. County ofEl Dorado (1971) 5 Cal.3d 480 ................................................................................................................ 11 Schonfeldt v. State ofCalz'fornia (1998) 61 Ca1.App.4th 1462 ..................................................................................................... 7 Singh v. Lipworth (2014) 227 Ca1.App.4th 813 ................................................................................................... 13 State Bd. ofEducation v. Honig (1993) 13 Ca1.App.4th 720 ..................................................................................................... 12 3 Respondent The Board 0f Trustees 0f the California State University’s Memorandum 0f Points and Authorities In Support 0fDemurrer t0 Petitioner Fred Rassaii’s Petition for Writ 0f Administrative Mandamus (20CV374092) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES (continued) Page Wulfien v. Dalton (1944) 24 Cal.2d 891 .............................................................................................................. 10 STATUTES California Code 0f Regulations Title 5 § 41300(f) ................................................................ passim Code CiV. Proc. § 430.10, subd. (e) ..................................................................................................................... 7 § 430.70 ..................................................................................................................................... 7 § 472 .......................................................................................................................................... 8 § 597 ........................................................................................................................................ 10 § 1005 ........................................................................................................................................ 8 § 1085 ...................................................................................................................................... 11 § 1086 ...................................................................................................................................... 11 § 1089 ........................................................................................................................................ 7 Gov. Code § 818 ........................................................................................................................................ 13 § 900 et seq ............................................................................................................................. 13 4 Type Footer Info Here 2 («Matter Primary Court Case #») 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 INTRODUCTION Petitioner Fred Rassaii (Rassaii) is a former graduate student at San Diego State University (“SDSU”) who was disqualified from the graduate program in 2020 after failing to meet SDSU’S grade-point-average (“GPA”) requirement. He filed a prior writ petition with this Court alleging that the university’s GPA requirement, Which is established by regulations is unlawful. This Court entered a judgment against Rassaii concluding that the United States Constitution and the California constitution authorize respondent Board 0f Trustees 0f the California State University (“CSU”)1 t0 disqualify him from graduate studies at SDSU for a deficient GPA, Which Rassaii has appealed. In addition, Rassaii filed this instant petition for writ of administrative mandamus (“Petition”) after SDSU denied him readmission to the graduate program based 0n his again having failing t0 meet SDSU’S GPA requirement, seeking to once again challenge the validity 0f that requirement. He seeks an order from this Court requiring CSU to reinstate him t0 the graduate program under a proposed reinstatement plan that mandates a lower GPA requirement than the regulations permit. Hence, the doctrines 0f claim and issue preclusion and plea in abatement bar Fred Rassaii’s Petition because this Petition alleges the same claims and issues as his prior petition that this Court has already resolved. This Petition also fails because CSU does not owe him a ministerial duty to an admission reinstatement plan inconsistent with the California Code 0f Regulations. STATEMENT OF FACTS I. IN RASSAII’S PRIOR LAWSUIT, THIS COURT UPHELD RASSAII’S ACADEMIC DISQUALIFICATION FROM THE GRADUATE MASTER’S DEGREE PROGRAM AT SDSU In 2019, Rassaii filed a lawsuit against CSU challenging his disqualification from the Physics Master’s Degree program at SDSU following the 2018 Fall Semester after earning a GPA lower than the required 3.0 for two consecutive semesters. (Request for Judicial Notice “RJN,” 1] 1 & Exh. 1 at 1-6.) Specifically, Rassaii’s 2019 lawsuit challenged the constitutionality 0f 1 Respondent The Board 0f Trustees of the California State University referred to itself as “Trustees” in Rassaii’s 2019 lawsuit against it. Respondent The Board 0f Trustees 0f the California State University’s Memorandum 0f Points and Authorities In Support 0fDemurrer t0 Petitioner Fred Rassaii’s Petition for Writ 0f Administrative Mandamus (20CV374092) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 §41300(f) of Title 5 of the California Code 0f Regulations (CCR) (“Section 413006)”), the regulation upon Which CSU relied to disqualify him for deficient GPA for one semester from SDSU. (Id) On September 30, 2020, this Court sustained CSU’s demurrer t0 Rassaii’s 2019 lawsuit and entered a judgment against Rassaii upholding the legality 0f Section 413006) and CSU’s disqualification of Rassaii for deficient GPA under that regulation. (RJN, fl 2 & EXh. 2 at 1-9.) Rassaii’s appeal of that judgment is pending. (RJN, fl 3 & EXh. 3 at 1.) II. IN THE PRESENT LAWSUIT, RASSAII AGAIN CHALLENGES HIS ACADEMIC DISQUALIFICATION FROM THE SAME MASTER’S PROGRAM On December 8, 2020, Rassaii filed the instant Petition against CSU. (Petition at 1.) In substance, Rassaii’s instant Petition once again challenges his disqualification from the same Master’s program at SDSU for deficient GPA pursuant to Section 41300(f). (Id. at pg. 1-6 & RJN, fl 6 & EXh. 6 at pg. 1511-10.) This time, Rassaii’s Petition asserts an additional claim for relief, Which is a Court order compelling CSU to retract certain reinstatement conditions t0 the same Master’s program for the 2020 Fall Semester, and t0 impose other more favorable (t0 him) reinstatement conditions that he contends comply With CSU’S established policies. (Petition at pg. 1 -6.) Specifically, Rassaii challenges CSU’s Administrative Probation reinstatement plan, Which allowed him t0 repeat only one graduate level course, and required him t0 earn a minimum 3.633 term GPA for the 2020 Fall Semester, a minimum 3.0 cumulative GPA for the 2021 Spring Semester, without the possibility 0f repeating or taking additional courses after the 2021 Spring Semester. (Petition at pg. 3 & EXh. A.) Rassaii claims Without merit that, according t0 CSU’S general policies, a disqualified graduate student seeking reinstatement is only required t0 earn a minimum 2.85 term GPA in the first semester following reinstatement, and a minimum 2.85 cumulative GPA in the second semester following reinstatement. (Id. at pg. 2.) Rassaii claims those policies are set forth in SDSU’S Graduate Bulletin and reinstatement forms. (Id.) Rassaii also claims he had an incompetent professor during the 2020 Fall Semester. (Id. at pg. 5.) His Petition seeks $650,000 in damages and $10,000,000 in punitive damages. (Id. at 5-6.) 6 Respondent The Board 0f Trustees 0f the California State University’s Memorandum 0f Points and Authorities In Support 0fDemurrer t0 Petitioner Fred Rassaii’s Petition for Writ 0f Administrative Mandamus (20CV374092) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Rassaii’s Petition alleges n0 facts about his grades after the 2020 Fall Semester. (Petition at pg. 1-6.) However, the judicially noticeable facts show Rassaii completed the 2020 Fall Semester with a 2.56 semester GPA, well below the minimum 2.85 semester GPA that his Petition demands. (RJN, fl 4 & Exh. 4 at 1-2.) The judicially noticeable facts also show Rassaii accepted the challenged reinstatement conditions nearly three months before his deadline t0 respond t0 the demurrer that CSU brought against him in his prior lawsuit, and he thus had the opportunity t0 raise this additional argument, but declined t0 d0 so, in the prior petition. (Petition at pg. 3 & EXh. A,RJN,'n5 &Exh. 5 at 1.) III. RASSAII HAS FILED A THIRD LAWSUIT, AGAIN CHALLENGING HIS ACADEMIC DISQUALIFICATION FROM THE SAME MASTER’S PROGRAM On February 26, 2021, Rassaii filed a third repetitive lawsuit against CSU challenging his disqualification from the same Master’s program. (RJN, 1] 6 & EXh. 6 at pg. 1-17.) In his third lawsuit, Rassaii concedes that he was aware 0f the alleged incompetent education at SDSU “right from the onset” 0f the 2018 Fall Semester, but failed t0 allege this in his prior petitions. (Id. at pgs. 3-4.) STANDARD OF REVIEW A petition for writ of administrative mandamus is subject to demurrer When it fails t0 state facts sufficient to constitute a cause 0f action. (Code CiV. Proc., §§ 430.10, subd. (e) & 1089.) A demurrer tests the legal sufficiency of the pleading, raising issues 0f law, not fact. (Donabedian v. Mercury Ins. C0. (2004) 116 Ca1.App.4th 968, 994.) However, a demurrer may challenge defects that appear 0n the face of the pleading as well as judicially noticeable matters outside the pleading. (Code CiV. Proc., § 430.70; Doe v. Doe I (2012) 208 Cal.App.4th 1185, 1189.) Furthermore, it is proper to sustain a demurrer Without leave t0 amend When it is not possible t0 cure the defects in the complaint, 0r when amendment is futile. (See, e.g., Schonfeldt v. State 0f California (1998) 61 Ca1.App.4th 1462, 1465.) / / / 7 Respondent The Board 0f Trustees 0f the California State University’s Memorandum 0f Points and Authorities In Support 0fDemurrer t0 Petitioner Fred Rassaii’s Petition for Writ 0f Administrative Mandamus (20CV374092) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ARGUMENT I. THE DOCTRINES 0F CLAIM AND ISSUE PRECLUSION BAR RASSAII’S PETITION BECAUSE RASSAII COULD HAVE LITIGATED HIS PRESENT CLAIMS AND ISSUES IN HIS PRIOR LAWSUIT AGAINST CSU BUT FAILED T0 D0 SO. Rassaii‘s Petition fails to state a claim, and therefore subj ect to demurrer, because it is barred by the doctrines of claim and issue preclusion. The legal doctrine 0f claim preclusion bars piecemeal litigation by prohibiting the relitigation of claims and issues between the same parties which have already been adjudicated in an earlier proceeding, or Which could have been litigated in thatpriorproceeding. (See, Bucur v. Ahmad (2016) 244 Cal.App.4th 175, 185 [concluding new causes of action bared by the doctrine 0f claim preclusion because within the scope 0f earlier action and should have been raised then].) The requisite elements 0f claim preclusion are, “(1) the claim in the present action must be identical t0 a claim litigated 0r that could have been litigated in a prior proceeding; (2) the prior proceeding resulted in a final judgment 0n the merits; and (3) the party against whom the doctrine is being asserted was a party 0r in privity With a party to the prior proceeding.” (Id.) (Emphasis added.) The doctrine of claim preclusion bars Rassaii’s Petition because there is a prior final judgment 0n the merits between the same parties and Rassaii could have litigated his present claims in that prior action. (McKinney v. Santa Clara (1980) 110 Cal.App.3d 787, 795 [concluding judgment sustaining demurrer final and on the merits when new complaint states the same facts and the former judgment determined that these facts did not constitute a cause of action].) Rassaii indisputably could have challenged CSU’s Administrative Probation conditions in his first lawsuit against CSU that raised Virtually identical issues about his GPA and asserted rights about his initial disqualification from the same graduate program, because he was aware 0f those conditions When he opposed CSU’s demurrer in his first lawsuit. (Code 0f CiV. Proc. §§ 472, 1005 [setting forth rule that plaintiff has a right t0 amend the complaint until the time the opposition to the demurrer is due].) If Rassaii had an objection to the conditions, specifically the GPA requirement, he could have raised that issue and litigated it in his prior suit. Judicially noticeable facts show CSU re- 8 Respondent The Board 0f Trustees 0f the California State University’s Memorandum 0f Points and Authorities In Support 0fDemurrer t0 Petitioner Fred Rassaii’s Petition for Writ 0f Administrative Mandamus (20CV374092) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 admitted Rassaii as a graduate student pursuant to its Administrative Probation conditions on March 12, 2020, nearly three months before his deadline to file an opposition 0r amended complaint in response t0 the demurrer that CSU brought against his previous lawsuit. (Petition at pg. 3 & Exh. A, RJN, 1H] 2, 5, EXh. 2 & EXh. 5 at 1.) As such, the doctrine 0f claim preclusion bars Rassaii’s present Petition because his obj ection to CSU’S Administrative Probation conditions asserted the same primary right (the right to be in the graduate program) and is within the scope 0f his prior lawsuit, and could have been litigated then. (Bucur, supra, 244 Cal.App.4th at 185.) The application of claim preclusion barring Rassaii’s Petition is appropriate because the doctrine “rests upon the sound policy 0f limiting litigation by preventing a party who has had one fair adversary hearing 0n an issue from again drawing it into controversy and subjecting the other party to further expense in its reexamination.” (Bucur, supra, 244 Cal.App.4th at 185.) In other words, Rassaii cannot continue t0 re-litigate the same claim asserting the right to be enrolled in graduate education at SDSU based on a lower GPA requirement, especially When he could have, but failed to, raise the Administrative Probation GPA requirement in his prior suit. The doctrine of issue preclusion also bars Rassaii’s Petition. The legal doctrine of issue preclusion prohibits relitigation 0f previously decided issues even if the second suit raises different causes 0f action. (Kemper v. County ofSan Diego (2015) 242 Ca1.App.4th 1075, 1088 [concluding issues raised in subsequent litigation barred by the doctrine 0f issue preclusion because based 0n identical issue actually litigated and determined in previous litigation].) “Issue preclusion applies (1) after final adjudication (2) 0f an identical issue (3) actually litigated and necessarily decided in the first suit and (4) asserted against one who was a party in the first suit. . .” (Id.) Specifically, the second element is met When identical factual allegations are at stake in the two proceedings, “even if some factual matters or legal theories that could have been presented with respect t0 that issue were not presented.” (Id. at 1089) (Emphasis in original.) Accordingly, “the fact a party asserts new legal 0r factual theories 0r new evidence relevant to an issue previously decided does not affect the applicability of the [issue preclusion] bar.” (Id. at 1090-1091.) 9 Respondent The Board 0f Trustees 0f the California State University’s Memorandum 0f Points and Authorities In Support 0fDemurrer t0 Petitioner Fred Rassaii’s Petition for Writ 0f Administrative Mandamus (20CV374092) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The doctrine of issue preclusion applies here because Rassaii’s Petition is based 0n CSU’S application 0f Section 41300(f)’s GPA requirement in relation t0 his GPA, an issue he had a “full and fair opportunity t0 litigate” in his prior suit. (1d,) Issue preclusion is warranted because a “primary purpose of the [issue preclusion] doctrine is t0 prevent inconsistent judicial rulings.” (Id. at 1095.) This court has already ruled CSU’s application 0f the academic sanctions under Section 41300(f) based 0n deficient GPA is constitutional. (RJN, 1] 2 & EXh. 2 at 1-9.) Rassaii is improperly seeking to relitigate his challenge t0 the CSU’S GPA requirement, Which was already decided against him in his prior petition. He is barred from suing again 0n the same GPA- requirement issue in this case. A. Alternatively, Rassaii’s Petition Should Be Abated Because the Petition Raises the Same Claim In His Prior Lawsuit Alternatively, Rassaii’s Petition should be abated/continued pending resolution of the appeal 0f his 2019 Lawsuit, because the same primary right t0 be in the graduate program is the gravamen 0f both the 2019 Lawsuit and the Petition, and is therefore improper t0 re-litigate. (Code CiV. Proc. § 597 [codifying defense ofplea in abatement]; Wulfjen v. Dalton (1944) 24 Cal.2d 891, 896 [explaining rule 0f abatement nearly identical to doctrine of claim preclusion: if a judgment in favor of the defendant in the first action would be a complete bar to the second action, the pendency 0f the first action should give defendant the right to have the second one abated/continued. . .Thus, once the parties are seen to be the same, the primary right theory 0f the cause of action is invoked, then differences in remedy or legal theory of the wrong are disregarded]; and Ferreira v. Keller (1970) 4 Cal.App.3d 292, 294-298 [confirming plea of abatement defense may be raised on demurrer].) II. CSU DOES NOT OWE RASSAII A MINISTERIAL DUTY 0F REINSTATEMENT IN ACCORDANCE WITH TERMS CONTRARY T0 CONSTITUTIONALLY PERMISSIBLE GPA REQUIREMENTS SET FORTH IN THE CALIFORNIA CODE 0F REGULATIONS Rassaii’s Petition also fails t0 state a claim because CSU does not have a ministerial duty t0 reinstate him to the Master’s Degree program based 0n a lower GPA requirement contrary t0 applicable California regulations and CSU’s graduate education policies. (Flores v. California Dept. ofCorrections & Rehabilitation (2014) 224 Cal.App.4th 199, 205 [explaining writ relief 10 Respondent The Board 0f Trustees 0f the California State University’s Memorandum 0f Points and Authorities In Support 0fDemurrer t0 Petitioner Fred Rassaii’s Petition for Writ 0f Administrative Mandamus (20CV374092) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 only available t0 compel a public body to perform a ministerial act which a statute 0r regulation specially enjoins].) A writ of mandate under Code of Civil Procedure section 1085 “may be issued against a public body or public officer ‘to compel the performance 0f an act Which the law specially enj oins, as a duty resulting from an office, trust, 0r station’ in cases ‘where there is not a plain, speedy, and adequate remedy, in the ordinary course of 1aw.”’ (Flores, supra, 224 Ca1.App.4th at 209.) “Two basic requirements are essential to the issuance of the writ: (1) A clear, present and usually ministerial duty upon the part of the respondent; and (2) a clear, present and beneficial right in the petitioner to the performance of that duty.” (Id. at 209 quoting Code CiV. Proc. §§ 1085, 1086 & People ex rel. Younger v. County ofEl Dorado (1971) 5 Ca1.3d 480, 491.) “A ‘ministerial duty’ is one generally imposed upon a person in public office Who, by Virtue 0f that position, is obligated ‘to perform in a prescribed manner required by law when a given state of facts exists.’” (Flores, supra, 224 Cal.App.4th at 209 quoting City ofKing City v. Community Bank ofCentral California (2005) 131 Cal.App.4th 913, 926.) CSU does not have a ministerial duty to comply with Rassaii’s demands to follow a lower GPA requirement. To the contrary, and consistent With the court’s prior ruling, CSU have the discretion to impose academic sanctions based on Section 41300(f) of Title 5 of the California Code of Regulations (“Section 41300(f)”), which sets forth constitutionally permissible GPA requirements for graduate students. (RJN, 1] 2, Exh. 2 at 7-8; Board ofCurators 0f University 0f Missouri v. Horowitz (1978) 435 U.S. 78, 89-9.) Contrary to the Petition’s core allegations, CSU’S Administrative Probation conditions are consistent with Section 41300(f) and its written policies. Those conditions required Rassaii t0 earn a minimum 3.633 term GPA for 2020 Fall Semester, a minimum 3.0 cumulative GPA for the 2021 Spring Semester, without the possibility of repeating more than one course or taking more than 30 units. As the court held in Rassaii’s prior lawsuit, pursuant t0 the minimum 3.0 cumulative GPA requirement set forth in Section 41300(f), “[CSU] may place a graduate student 0n academic probation if the student fails to maintain a cumulative GPA of at least 3.0, and may also impose additional academic sanctions, such as disqualificationfrom the graduateprogram 1 1 Respondent The Board 0f Trustees 0f the California State University’s Memorandum 0f Points and Authorities In Support 0fDemurrer t0 Petitioner Fred Rassaii’s Petition for Writ 0f Administrative Mandamus (20CV374092) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 orfromfurther enrollment at the campus as determined by [CSU], if the student fails t0 maintain a 3.0 GPA While 0n academic probation.” (RJN, 11 2, EXh. 2 at 7.) (Emphasis added.) Moreover, CSU’s Graduate Bulletin requires a minimal 3.0 GPA in graduate programs and does not entitle students t0 repeat a course. Consistent With Section 41300(f), CSU’S Graduate Bulletin states, “[GPAS] of at least 3.0 (B) must be maintained in: (1) all courses listed 0n the official degree program [and] (2) all courses, 300-level and above. . .” (RJN, 1] 7, EXh. 7 at Pg. 80.) In regards to course repeats, the Bulletin states that repeating a course is generally not permitted and that a student may be permitted t0 repeat only one course With prior permission: “ordinarily, a graduate student may not repeat courses taken as part 0f an official master’s degree program; however, with prior permission of the graduate adviser, a student may repeat one course on the official program 0f study in Which a grade 0f C (2.0) has been earned.” (RJN, fl 7, EXh. 7 at Pg. 69.) (Emphasis Added.) Finally, the Physics Master’s Degree program is a 30-unit program. (RJN, 1] 7, EXh. 7 at Pg. 358.) Accordingly, the Administrative Probation plan, allowing Rassaii to repeat one course and requiring him to earn 3O units and a 3.0 cumulative GPA at the end of the 2021 Spring Semester is entirely consistent with Section 41300(f) and CSU’s SDSU applicable written policies. Rassaii’s contention that certain provisions in CSU’s SDSU reinstatement forms and Graduate Bulletin only require him t0 earn a minimum 2.85 term GPA after his first semester following reinstatement and a minimum 2.85 cumulative GPA after his second semester following reinstatement are simply wrong. Those provisions, Which are consistent With Section 41300(f), only apply to other graduate programs which, unlike Rassaii’s program, d0 not have 30 unit limitations. (RJN, 1] 7, EXh. 7 at Pg. 358.) Furthermore, those provisions are inapplicable t0 Rassaii because they typically apply t0 graduate students Who d0 not have cumulative GPA deficits as great as his. (Id) Lastly, those provisions are unenforceable to the extent that they conflict in any way With the legislative prescriptions of Section 41300(f). (State Bd. ofEducation v. Honig (1993) 13 Ca1.App.4th 720, 750 [explaining the Legislature has plenary authority and that if there is any doubt as to the Legislature’s power to act in any given case, the doubt should be resolved in favor of the Legislature’s action].) 12 Respondent The Board 0f Trustees 0f the California State University’s Memorandum 0f Points and Authorities In Support 0fDemurrer t0 Petitioner Fred Rassaii’s Petition for Writ 0f Administrative Mandamus (20CV374092) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Critically, the SDSU policies 0n which Rassaii relies do not help him because his claims are moot, as he never achieved the lower GPA that he seeks t0 have applied. Judicially noticeable facts show he completed the 2020 Fall Semester with a 2.56 semester GPA, well below not just the 3.0 applicable t0 his program, but also well below the 2.85 term GPA that Rassaii advocates should apply. (RJN, 1] 4 & EXh. 4; Lungren v. Deukmejian (1988) 45 Cal.3d 727, 732 [concluding writ 0fmandamus should not issue if the conditions giving rise t0 the duty no longer exist].) Accordingly, Rassaii cannot seek admission into a semester that has already occurred, and for which he failed to maintain an adequate GPA even under his own theory. Likewise, it is mathematically impossible for Rassaii to raise his cumulative GPA t0 3.0 even ifhe were re- admitted t0 take classes for a final semester to complete 30 units. Finally, Rassaii’s allegation that he had an incompetent professor is irrelevant t0 his writ petition because that is not a legal basis to compel CSU to re-admit him as a graduate student. (Paulsen v. Golden Gate University (1979) 25 Cal.3d 803, 808 [concluding “there is a widely accepted rule ofjudicial nonintervention into the academic affairs 0f schools”].) III. THE GOVERNMENT CODE BARS ANY CLAIM FOR MONETARY RELIEF AGAINST CSU Finally, Rassaii’s claim for monetary relief against CSU must be rejected for a host of reasons, including that monetary damages are unavailable 0n a writ petition and that judicially noticeable facts show he failed t0 timely submit a government claim as required by the Government Claims Act. (RJN, 1] 8 & EXh. 8; GOV. Code § 900 et seq; Flores v. California Dept. ofCorrections & Rehabilitation (2014) 224 Ca1.App.4th 199, 205 [concluding mandamus should not be issued if petitioner has an adequate legal remedy].) Furthermore, as a public entity, CSU cannot be subj ect t0 punitive damages under Government Code section 818. CONCLUSION Rassaii has filed successive lawsuits seeking to be reinstated to SDSU’S graduate program when he undisputedly failed to maintain the GPA required by university regulations and policies. His petition should thus be dismissed with prejudice because amendment would be futile. (Singh v. Lipworth (2014) 227 Cal.App.4th 813, 827 [concluding “leave t0 amend may be denied Where 13 Respondent The Board 0f Trustees 0f the California State University’s Memorandum 0f Points and Authorities In Support 0fDemurrer t0 Petitioner Fred Rassaii’s Petition for Writ 0f Administrative Mandamus (20CV374092) QONUIAUJN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 permitting an amendment would be futile. . .”].) The allegations in Rassaii’s Petition and the judicially noticeable facts show his claims are barred by the doctrines of claim and issue preclusion and plea in abatement. Furthermore, CSU also does not owe him a ministerial duty to an admission reinstatement plan inconsistent With Section 41300(f), and his claims are moot because his 2.56 term GPA for the 2020 Fall Semester demonstrates CSU properly disqualified him from further enrollment pursuant to Section 41300(f). His requested remedy of a lower GPA requirement can never allow him t0 be reinstated t0 the graduate program because he has not been able to meet his own proffered minimum GPA. Dated: April 19, 2021 Respectfully Submitted, MATTHEW RODRIQUEZ Acting Attorney General of California ”$3“ BRANDON FIELDS Deputy Attorney General Attorneysfor Respondent The Board ofTrustees 0fthe California State University (erroneously sued as The State ofCalifornia) OK2021900065 91365353.docx 14 Respondent The Board of Trustees of the California State University’s Memorandum of Points and Authorities In Support of Demurrer to Petitioner Fred Rassaii’s Petition for Writ of Administrative Mandamus (20CV374092)