Petitioners_response_to_objections_to_petitioners_prop_judgment_and_writ

Response

Cal. Super. - 4th Dist.April 24, 2017

OO 00 J O N Un BA W N = NN ND N N ND N N ND N D E Em Em e m e m em e m e m e m co NN O N Un RA W N = O OO 0 0 N D R E W I N D = O ELECTRONICALLY FILED Superior Court of Califarnia, MARK M. HATHAWAY, ESQ. Counyrat range (CA 151332; DC 437335; IL 6327924; NY 2431682) 02/08/2019 at 05:30:00 FM JENNA E. PARKER (CA 303560) Clerk of the Superior Court HATHAWAY PARKER By Monique Ramirez, Deputy Clerk 445 South Figueroa St., 31° Floor Los Angeles, California 90071 Telephone: (213) 529-9000 Facsimile: (213) 529-0783 E-Mail: mark @hathawayparker.com E-Mail: jenna@hathawayparker.com Attorneys for Petitioner John Doe SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE, CENTRAL JUSTICE CENTER JOHN DOE, an individual, Case No.: 30-2017-00916260-CU-WM-CJC Petitioner, [Hon. Walter P. Schwarm, Department C-19] Vv. PETITIONER’S RESPONSE TO CONCORDIA UNIVERSITY’S GILBERT FUGITT, Ed.D., an individual in his OBJECTIONS TO PETITIONER’S official capacity as Dean of Students; BRIANNA| PPROPOSED JUDGMENT AND MONTGOMERY, an individual in her official PROPOSED PEREMPTORY WRIT OF capacity as Associate Dean of Residential MANDATE Education and Services; CONCORDIA UNIVERSITY, a California corporation; and DOES 1 to 20 inclusive, Respondents. TO THE COURT, ALL PARTIES AND THEIR ATTORNEYS OF RECORD: In an attempt to resolve disputes as to the form of the proposed judgment and writ, Petitioner John Doe hereby responds to Respondent Concordia University’s Objections as follows: I. PETITIONER AGREES THAT THE PROPOSED JUDGMENT AND WRIT SHOULD BE AMENDED TO REFER TO CONCORDIA UNIVERSITY AS THE SOLE RESPONDENT. Because all individual Respondents have been dismissed from this case, Petitioner agrees that the Proposed Judgment and Proposed Writ should refer to the sole remaining Respondent in this case, Concordia University. II. PETITIONER DISAGREES THAT THE PROPOSED JUDGMENT AND WRIT SHOULD OMIT REFERENCE TO SETTING ASIDE THE EXPULSION. PETITIONER’S RESPONSE TO CONCORDIA UNIVERSITY'S OBJECTIONS 1 OO 00 J O N Un BA W N = NN ND N N ND N N ND N D E Em Em e m e m em e m e m e m co NN O N Un RA W N = O OO 0 0 N D R E W I N D = O In paragraph 3, the proposed judgment appropriately orders, “A Peremptory Writ of Mandate shall issue from the Court directing Respondents to set aside their decision and expulsion imposed on Petitioner and conduct such further proceedings as is consistent with the Court’s decision.” The proposed judgment is consistent with Code Civ. Proc. § 1094.5 subd. (f), which instructs the court to “enter judgment either commanding respondent to set aside the order or decision, or denying the writ.” The “order or decision” is the expulsion of Petitioner from Concordia University. Respondent was not expelled from Concordia for any reason other than the findings from the underlying Title IX investigation/adjudication. Setting aside the improper expulsion decision was the intent of the writ of mandamus action. Respondent is correct that Petitioner stated that Concordia should not be ordered to reconsider expelling John Doe. On the other hand, Concordia must set aside and vacate the expulsion pursuant to Code Civ. Proc. § 1094.5 subd. (f). The relief is exactly that which is permitted under the Code and is the relief Petitioner explicitly sought through his Petition for Writ of Mandamus. III. PETITIONER DISAGREES THAT THE PROPOSED JUDGMENT SHOULD OMIT REFERENCE TO THE COURT RETAINING JURISDICTION. Attorney’s fees are recoverable in writ of mandamus pursuant to Code Civ. Proc. § 1021.5 where the litigation resulted in the enforcement of an important right affecting the public interest. Petitioner’s counsel has successfully recovered attorney’s fees in similar cases against private colleges and universities that have denied students a fair process in Title IX sexual misconduct disciplinary proceedings. The proposed judgment makes no determination as to the appropriateness or amount of a fee award in this case. The reference is intended only to clarify that the Court retains jurisdiction to determine the entitlement and amount of attorney’s fees due to Petitioner from Respondent, if any. IV. PETITIONER DISAGREES WITH RESPONDENT’S OBJECTION TO THE REFERENCE TO “COSTS.” Petitioner is entitled to an award of costs in this proceeding in the amount to be set forth in a Memorandum of Costs. V. PETITIONER SUGGESTS AMENDMENT TO THE PROPOSED JUDGMENT FOR CONSISTENCY WITH THE RELIEF PERMITTED BY CODE CIV. PROC. § 1094.5. Code Civ. Proc. § 1094.5 subd. (f) makes clear that the Court must “enter judgment either PETITIONER’S RESPONSE TO CONCORDIA UNIVERSITY'S OBJECTIONS 2 OO 00 J O N Un BA W N = NN ND N N ND N N ND N D E Em Em e m e m em e m e m e m co NN O N Un RA W N = O OO 0 0 N D R E W I N D = O commanding respondent to set aside the order or decision, or denying the writ.” The Court need not issue any further orders, but “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.” (Code Civ. Proc. § 1094.5(f), emphasis added.) Providing direct instruction to Respondent about “precisely what action must be taken in response to the order” is not authorized and runs the risk of limiting or controlling the discretion legally vested in Respondent. Since ordering reconsideration is discretionary, Petitioner suggests removing the phrase “and conduct such further proceedings as is consistent with the Court’s decision” from paragraph 3 of the proposed judgment altogether. Paragraph 3 should read: “A Peremptory Writ of Mandate shall issue from the Court directing Respondents to set aside their decision and expulsion imposed on Petitioner.” Petitioner does not object to the inclusion of the phrase “The judgment shall not limit or control in any way the discretion legally vested in the respondent” in the proposed judgment. DATED: February 8, 2019 HATHAWAY PARKER Jenna E. Parker, Esq. Attorneys for Petitioner PETITIONER’S RESPONSE TO CONCORDIA UNIVERSITY'S OBJECTIONS 3 OO 00 J O N Un BA W N = NN ND N N ND N N ND N D E Em Em e m e m em e m e m e m co NN O N Un RA W N = O OO 0 0 N D R E W I N D = O PROOF OF SERVICE STATE OF CALIFORNIA ) )ss. COUNTY OF LOS ANGELES) | am employed in the County of Los Angeles, State of California. | am over the age of 18 and not a party to the within action; my business address is 445 South Figueroa Street, 31st Floor, Los Angeles, California 90071. On February 8, 2019, | served the foregoing document described [Proposed] PETITIONER'S RESPONSE TO CONCORDIA UNIVERSITY'S OBJECTIONS TO PETITIONER'S PPROPOSED JUDGMENT AND PROPOSED PEREMPTORY WRIT OF MANDATE on all interested parties listed below by transmitting to all interested parties a true copy thereof as follows: Adam L.] ohnson, Esq. Musick Peeler & Garrett LLP 650 Town Center Drive Suite 1200 Costa Mesa, CA 92626 Phone: (714) 668-2400 Facsimile: (714) 688-2490 E-mail: a.johnson@ mpglaw.com ATTORNEY FOR RESPONDENTS [J BY FACSIMILE TRANSMISSION from FAX number (213) 529-0783 to the fax number set forth above. The facsimile machine | used complied with Rule 2003(3) and no error was reported by the machine. Pursuant to Rule 2005(i), | caused the machine to print a transmission record of the transmission, a copy of which is attached to this declaration. BY MAIL by placing a true copy thereof enclosed in a sealed envelope addressed as set forth above. | am readily familiar with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with U.S. postal service on that same day with postage thereon fully prepaid at Los Angeles, California in the ordinary course of business. | am aware that on motion of party served, service is presumed invalid if postal cancellation date or postage meter date is more than one (1) day after date of deposit for mailing in affidavit. [J] BY PERSONAL SERVICE by delivering a copy of the document(s) by hand to the addressee or | cause such envelope to be delivered by process server. [1 BY EXPRESS SERVICE by depositing in a box or other facility regularly maintained by the express service carrier or delivering to an authorized courier or driver authorized by the express service carrier to receive documents, in an envelope or package designated by the express service carrier with delivery fees paid or provided for, addressed to the person on whom it is to be served. [] BY ELECTRONIC TRANSMISSION by transmitting a PDF version of the document(s) by electronic mail to the party(s) identified on the service list using the e-mail address(es) indicated. | declare under penalty of perjury under the laws of the State of California that the above is true and correct. at the above is true and correct. PETITIONER’S RESPONSE TO CONCORDIA UNIVERSITY'S OBJECTIONS 4