1 .Jonathan D.

Miller (SBN 220848)

jonathan((Unps-law .com
2 Alison MBernaJ (SBN 264629)
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3 NYE, PEABODY, STI ING HALE & Ml , LLP
33 West Mission Street, Suite 201
4 Santa Barbara, California 93101
Telephone: (805) 963-2345
5 Facsimile: (805) 563-5385
6 Attorneys for Respondents, THE REGENTS OF THE
UNIVERSITY OF CALIFORNIA, UNIVERSITY OF
7 CALIFORNIA, SANTA BARBARA, et al.

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SUPERIOR COURT OF CALIFORNIA
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COUNTY OF SANTA BARBARA
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JOHN DOE, an individual, CASE NO.: 16CV04758
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Plaintiff/Petitioner, NOTICE OF ENTRY OF ORDER
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NOTJCE OF ENTRY OF ORDER DJSMJSSJNG CASE

 1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
2 PLEASE TAKE NOTICE that the hearing on Respondents' Motion to Dismiss
3 was held on August 7, 2018, in Department 3 of Santa Barbara Superior Court, Honorable

4 Thomas Anderle presiding. Jonathan Miller appeared for Respondents, The Regents of the

5 University of California, et al., and Robert Ottilie appeared for Petitioner John Doe. The

6 Court adopted its tentative ruling and granted Respondents' Motion to Dismiss. The Court

7 ordered the case dismissed. A true copy of the Minute Order dismissing the case is

8 attached hereto as Exhibit A.

10 Dated: August 10, 2018 NYE, PEABODY, STIRLING, HALE &

MILLER, LLP
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Attorneys for Respondents THE REGENTS
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2
NOTICE OF ENTRY OF ORDER DISMISSING CASE
EXHIBIT A
 SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA BARBARA

Dated and Entered: 08/07/2018 Time: 9:30 AM

Judicial Officer: Thomas P Anderle
Deputy Clerk: Veronica Robles Dept: SB Dept 3
Deputy Sheriff: Anthony Deleo
Court Reporter: Rosemary Zaragoza Case No: 16CV04758

John Doe vs University of California Santa Barbara et al

Parties Present:

Miller, Jonathan D Attorney for Defendant

Ottilie, Robert P Attorney for Petitioner

NATURE OF PROCEEDINGS: Motion: Dismiss

After argument the Court made the following ruling:

Motion to Dismiss

Attorneys:

For Plaintiff/Petitioner: Robert P. Ottilie (San Diego)

For Defendant/Respondent: Jonathan D. Miller (Nye, Peabody, et al.)

Ruling: The Court grants respondent/defendant Regents of the University of California's

motion to dismiss.

Background

On October 21, 2016, petitioner John Doe filed a petition and complaint for declaratory
relief, peremptory writ of mandate, alternative writ of mandate, and injunction. On
December 14, 2016, Doe filed a first amended petition and complaint ("FAP"), adding a
cause of action for administrative mandamus. Doe named the University of California,
Santa Barbara ("UCSB"), and the Regents of the University of California ("Regents") as
respondents/defendants.

SC-2411 (Revised July 1, 2013) MINUTE ORDER

 Doe challenged his August 30, 2016, interim suspension by UCSB, arising out of an
alleged August 25, 2016; assault in San Diego County, which charges were dismissed. On
September 23, 2016, a UCSB Vice Chancellor affirmed the August 30, 2016, interim
suspension order. UCSB commenced a Title IX investigation on October 25, 2016.

On January 3, 2017, the Court denied Doe's request for a stay of the interim suspension
order on the ground that there was no final administrative order. On February 3, 2017, Doe
filed a petition for writ of mandamus with the Second District Court of Appeal. On March
13, 2017, the Court of Appeal issued an order indicating this Court should reconsider its
January 2017 order.

On March 21, 2017, this Court found that UCSB 's inaction over a long period of time
was unreasonable and arbitrary, the interim suspension was particularly egregious given
the UCSB's delay in completing its Title IX investigation, and the balance of harms
weighed in favor of granting a preliminary injunction. The Court preliminarily enjoined
UCSB from continued enforcement of the interim suspension and stayed the suspension,
which injunction was to remain in effect until the conclusion of the administrative process
and, if Doe was convicted of a charge, through any court action Doe should pursue.

At the March 21, 2017, hearing, Doe's counsel asked for leave to file an amended
complaint to add a procedural due process claim. The Court granted leave to do so.
Counsel indicated he would file it and set it 30 days out-April 25, 2017. [March 21,
2017, Hearing Transcript ("3/17 Tr.") 24:3-18 (Doe's Exhibit 2 includes two hearing
transcripts and the March 21 hearing is the second one. The pages of that transcript are
unnumbered. The Court has given the pages numbers for reference.)]

Regents' Counsel then said that leave to amend would moot the pending demurrer. The
Court took the March 28 hearing on demurrer and April 25 hearing on the amended
petition, off calendar. Doe's Counsel did not file an amended complaint after the March 21
hearing and before May 16, 2017.

On May 16, 2017, Regents (erroneously sued as UCSB) appealed the Court's ruling. On
June 22, 2018, Regents filed a request for voluntary dismissal of that appeal. On June 27,
the Court of Appeal entered an order dismissing the appeal and filed a remittitur with this
Court.

On June 29, Regents filed a motion to dismiss this case as moot. On July 23, Doe filed a
second amended petition and complaint ("SAP") with the same five causes of action as the
FAP.

SC-2411 (Revised July 1, 2013) MINUTE ORDER

 Motion to Dismiss: Regents moves to dismiss this case as moot. UCSB has concluded the
administrative proceedings with respect to Doe and "on the record of this matter Petitioner
has been found not responsible for violating any provision of University policy arising
from this matter, he has received no sanction, and he never will." Doe opposes the motion,
contending that he should be permitted to pursue the claims in his SAP.

1. Doe Did Not Have Leave to File the SAP: Doe filed the SAP after Regents filed this
motion. Doe contends that he had leave to file the SAP. On March 21, 201 7, Doe's counsel
said he had become aware of a procedural due process claim "as of this week." [3/17 Tr.
24:4-1 O] The Court granted leave. [3/17 Tr. 24: 11] Counsel said he would file it and set it
for hearing on April 25. [3/17 Tr. 24: 13-18] That hearing date turned out to be
unnecessary.

Doe says he couldn't file the SAP because of Regents' appeal. But he said he intended to
file it right away and had from March 21 to May 16 to do so.

The Court granted leave to amend based on the addition of a procedural due process claim
as it existed at the time. The Court did not grant leave to file an amended petition
challenging actions taken during the proceeding, nor did the Court authorize an amended
petition to be filed after completion of all administrative proceedings in Doe's favor. To
the extent that a party alleges facts occurring after the original complaint, it is a
supplemental complaint (CCP § 464), not an amended complaint.

Doe did not have leave to file the SAP.

2. Regardless of Which Petition is the Operative Pleading, the Matter is Moot: Whether
the SAP or FAP is the operative pleading, this matter is moot.

"A judicial tribunal ordinarily may consider and determine only an existing controversy,
and not a moot question or abstract proposition." (Wilson v. Los Angeles County Civil
Service Comm 'n, 112 Cal.App.2d 450, 452-453 (1952) [internal quotations and citation
omitted].) "[A]lthough a case may originally present an existing controversy, if before
decision it has, through act of the paiiies or other cause, occurring after the
commencement of the action, lost that essential character, it becomes a moot case or
question which will not be considered by the court." (Id. at 453 [internal quotations and
citation omitted].) "The ripeness element of the doctrine of justiciability is intended to
prevent courts from issuing purely advisory opinions.'' (Wilson & Wilson v. City Council
ofRedwood City, 191 Cal. App. 4th 1559, 1573 (2011).)

After this Court's March 21, 2017 order, UCSB ended the interim suspension and
reinstated Doe as an enrolled student. UCSB assisted Doe with obtaining University

SC-2411 (Revised July 1, 2013) MINUTE ORDER

 housing, and he returned to the UCSB for the spring quarter, which began on April 7,
2017. [Suzanne Perkins Dec. if5] As mentioned above, in an appeal decision on May 21,
2018, a UCSB Dean reversed the disciplinary sanction and UCSB will not pursue any
sanction against Doe. [Id. iflO] (Doe is no longer a student at UCSB. UCSB advised him
after Winter Quarter of 2018 that he was precluded from returning to campus because of
his inability to complete sufficient credits, which Doe says is because of his depression,
which resulted from the investigation and suspension. [Doe Dec. ifif5, 6; Opposition 3 :23-
4:2])

Doe claims that there are four grounds on which he seeks to have the interim suspension
orders reversed and cleared from his record. (Doe keeps referring to two suspension
orders. There was one on August 30, 2016, which was confirmed on September 23, 2016.)
Those grounds are: 1. UCSB never had jurisdiction over the issue. 2. The suspension order
was not supported by substantial evidence in the administrative record. 3. Regents violated
Doe's constitutional rights to due process by concealing evidence that the Vice Provost
relied on. 4. The suspension order was not minimally restrictive.

Doe insists that the suspension order was not ''reversed." This is a semantic argument. The
interim suspension was just that-interim. This Court enjoined it, rendering it ineffective.
And, upon final determination in Doe's favor, the interim suspension had no effect. How
UCSB arrived at the interim suspension order is of no moment.

Doe wants the Court to remove all record of the suspension order from its files. He says
that other educational institutions and potential employers could learn of the interim
suspension. Regents' evidence establishes that this is not the case. Miles Ashlock is the
Acting Associate Dean of Student Life for the University, who oversees the Office of
Judicial Affairs. [Ashlock Dec. ifif3, 4] The Office of Judicial Affairs is responsible for
responding to requests from other academic institutions and potential employers relating to
students' disciplinary files. [Id. if5] When appropriately requested, the Office of Judicial
Affairs will complete a "Dean's certification" that responds to inquiries regarding a
student's conduct while at the University. The Common Application, a platform used by
more than 750 colleges and universities worldwide asks, "[h]as the applicant ever been
found responsible for a disciplinary violation at your school, whether related to academic
misconduct or behavioral misconduct, that resulted in the applicant's probation,
suspension, removal, dismissal, or expulsion from your institution?" In Doe's case,
UCSB's response to this question regarding the August 25, 2016, incident would be "No."
Prospective academic institutions and employers do not typically inquire whether a student
has ever been placed on interim suspension. If they did, UCBS's response would be "No,"
due to this Court's March 21, 2017, order. [Id. if6] (Ashlock refers to the Court's order as
"reversing the interim suspension." Again, it does not matter how UCSB characterizes the
order. The point·is that UCSB will not report the interim suspension.) Doe's official UCSB

SC-2411 (Revised July 1, 2013) MINUTE ORDER

 transcript contains no reference to the interim suspension or any discipline. [Id. if7, Exhibit
A]

Even if the Court still had a justiciable controversy before it, it could not order the
expungement of the interim suspension order or any part of the administrative record.
UCSB maintains these files to comply with the its record retention policies and the
requirements of the United States Department of Education, Office of Civil Rights, in the
event of inquiry or audit. (However, these files are not provided to prospective academic
institutions and employers.) [Id. if8] "[T]he Title IX coordinator is responsible for ...
maintaining grievance and compliance records and files." U.S. Dept. of Education, Title
IX Resource Guide, p. 5 (https://www2.ed.gov/about/offices/list/ocr/docs/dcl-title-ix-
coordinators-guide-201504.pdf). "Mandamus will not lie to compel the performance of
or
any act which would be void, illegal contrary to public policy." (Duff v. City of
Gardena, 108 Cal.App.3d 930, 936 (1980).)

There is no relief remaining for this Court to give in mandamus. There is no final
administrative action adverse to Doe. There are no active proceedings involving Doe.

There is an exception permitting a Court to hear a moot action that involves matters of
public policy. "If an action involves a matter of continuing public interest and the issue is
likely to recur, a court may exercise an inherent discretion to resolve that issue, even
though an event occurring during its pendency would normally render the matter moot."
(Liberty Mut. Ins. Co. v. Fales, 8 Cal.3d 712, 715-716 (1973) .) But, when the issues
presented are essentially factual in nature and require resolution on a case-by-case basis,
the case is not one on which a court will exercise discretion to address on the merits,
despite the fact that it is moot. (MHC Operating Ltd. P'ship v. City ofSan Jose, 106
Cal.App.4th 204, 215 (2003).)

The Court understands Doe's frustration with the UCSB process in this matter, including
the interim suspension, due process, issues, and the inordinate delays in the proceeding. But
the issues he raises involve factual issues specific to his situation. He says that documents
in his file were altered, other documents included in his file that were illegally obtained,
evidence was concealed from him, and the suspension order was not supported by
substantial evidence. These are not matters of continuing public interest that would justify
the Court to proceed when the conclusion of the administrative proceeding has rendered
the matter moot.

3. Declaratory Relief Cause of Action: Doe contends that his action is not moot because he
seeks declaratory relief. But all of the relief he seeks relates to past alleged wrongs.

SC-2411 (Revised July 1, 2013) MINUTE ORDER

Declaratory relief operates prospectively to declare future rights and duties rather than to
redress past wrongs. (County of San Diego v. State of California, 164 Cal.App.4th 580,
607 (2008); Canova v. Trustees of Imperial Irrigation District Employee Pension Plan,
150 Cal.App.4h 1487, 1497 (2007).) "The purpose of a judicial declaration of rights . .. is
to enable the parties to shape their conduct so as to avoid a breach .... It serves to set
controversies at rest before they lead to repudiation of obligations, invasion of rights or
commission of wrongs; in short, the remedy is to be used in the interests of preventive
justice, to declare rights rather than execute them." (Babb v. Superior Court, 3 Cal.3d
841, 848 (1971) (internal quotes omitted).)

When a party seeks review of the validity of an administrative action, such review is
properly brought in mandamus under CCP § 1094.5 rather than by means of declaratory
relief. (State of California v. Superior Court (Veta Company), 12 Cal.3d 237, 251 (1974).)
"[A]ctions for declaratory relief involve matters of practice and procedure only and are not
intended in any way to enlarge the jurisdiction of courts over parties and subject- matter."
(Hoyt v. Bd. of Civil Serv. Comm'rs of City of Los Angeles, 21 Cal.2d 399, 403 (1942).) As
discussed above, the mandamus action is moot.

The claims for declaratory relief do not make this case justiciable.

4. Evidentiary Objections: Regents objects to substantial portions of Doe's evidence.

Ruling on the objections is unnecessary because, even considering all of Doe's evidence,
the Court would grant Regents' motion.

5. Order: The Court grants respondent/defendant Regents of the University of California's

motion to dismiss. Doe notes that he has filed a memorandum of costs. The Court retains
jurisdiction to address any memorandum of costs timely filed and served. The Court notes
that there is no proof of service accompanying the only memorandum of costs filed with
the Court.

Sur-Reply

On August 6, 2018, Doe filed a sur-reply which the Court has read and considered even
though it is an improper pleading. Doe continues to insist that the interim suspension was
a final order. But that is not what the Court of Appeal said. The Court of Appeal simply
said that the trial court can grant an injunction any time before judgment and the trial
court had not evaluated 1) the likelihood of success on the merits, and 2) the balance of
harms.

SC-2411 (Revised July 1, 2013) MINUTE ORDER

 Prior to final resolution of the mandamus action, the matter was resolved in favor of Doe
and is now moot.
The Court further ordered: No other document need to be filed to dismiss the case, the Court's tentative
ruling shall be the last document to be filed.

Future Scheduled Hearings~·

DARREL E. PARKER, EXECUTIVE OFFICER Minutes Prepared by:

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SC-2411 (Revised July 1, 2013) MINUTE ORDER

 1 PROOF OF SERVICE
2 STATE OF CALIFORNIA, COUNTY OF SANTA BARBARA
3 At the time of service 1 was over 18 year. of age and not a party to this action. I
am employed in the ounty of Santa Barbara State of California. My business address is
4 33 West Mission Street Suite201 antaBarbara California 93101.
5 On August 10, 2018, I served D the originals IBl true copies of the following
document(s) de cribed as following document(s):
6
NOTICE OF ENTRY OF ORDER DISMISSING CASE
7
8 on the interested parties in this action as follows:
9
10 Robert P. Ottilie
444 West "C" Street, Suite 320
t::.:: 11 San Diego, CA 92101
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[email protected]
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20 I declare under penalty of perjury under the laws of the State of California that the
above is true and correct.
21
Executed on August 10, 2018, at Santa Barbara, California.
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