Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. RG 07327947
Lambden, J.
Appellant Olusegun K. Phillips-Alonge, appearing in propria persona, appeals from the superior court’s judgment denying his petition for writ of mandate, and asks this court to grant him writ relief. We deny his request for writ relief, and affirm the judgment.
BACKGROUND
We summarize the facts that are necessary to consider the issues raised by appellant, a former doctoral candidate at the University of California, Berkeley (University), pursuant to our deferential standard of review.
Appellant, a Nigerian national, began his studies as a Doctor of Engineering (D. Eng.) in the Engineering and Project Management Program (EPM) in the Department of Civil and Environmental Engineering (CEE) at the University in the fall of 2003 after corresponding with respondent Robert Glenn Bea, a professor in the EPM program. Appellant filed his petition for writ of mandate in the superior court following his dismissal from the University in 2006, which occurred after the graduate division’s review of his appeal following his spring 2004 failure of a comprehensive examination, as well as of a make-up examination.
We take some of the facts in this section from the documents attached to appellant’s request for judicial notice to this court. We previously deferred ruling on this request pending our review of appellant’s appeal. Having received no opposition to this request and reviewed the documents submitted, and given that appellant was entitled to file a record with his appeal, we grant this request. We also granted respondents’ request for judicial notice on September 30, 2008.
The record contains a portion of the “UCB Guide to Graduate Policy,” which states that “[s]tudents are subject to dismissal if they . . . fail their comprehensive . . . exams.” The EPM program requirements included that “the first step toward a doctoral degree is passing the comprehensive exam at the doctoral level.” In May 2004, appellant and other EPM students took the EPM comprehensive examination. Appellant passed at the doctoral level only Bea’s question, and not the other three questions. Professor Iris Tommelien of the EPM program informed appellant that he had not passed the examination, and that he would be given another opportunity to take it. One professor ultimately agreed to pass appellant at the doctoral level based on his original answer. Appellant passed another professor’s question in the make-up examination but not Tommelein’s, and Tommelein informed appellant by email that he had not passed her make-up question “at the PhD level.” In a May 21, 2004 letter to appellant, Tommelein stated that he had not passed “at the doctoral level,” that he was “free to discuss these exam results and directions forward” with her or any other EPM faculty, and that she hoped “you nevertheless value the time you have spent here, at Berkeley, and I wish you well in your future endeavors.”
During appellant’s time at the University, it had in place a two-step graduate appeal procedure that allows the student to first “attempt resolution at the unit level” (meaning the department level) and, if that was unsuccessful, to file a written appeal with the graduate division. Upon receiving a formal appeal to the graduate division, the graduate dean could “assign [a] . . . campus official to conduct the investigation and make a recommendation to the dean for final action.” The procedure sets forth requirements for the investigation, including obtaining copies of responses from the parties charged and sharing them with the student, interviewing the student and other witnesses, and preparing a report of findings. Based on the fact-finder’s investigation, the graduate dean may decide on appropriate action, and the student has the opportunity to request reconsideration of that action.
Appellant, after unsuccessfully appealing the results of the comprehensive examination to the EPM program chair, Professor Gregory Fenves, who determined that the examination scoring was fair, filed a formal appeal with the graduate division in late 2004. Professor Ilan Adler subsequently conducted an investigation and prepared a written report.
In his 2005 report, Adler summarized appellant’s grounds for his appeal as being procedural error and a violation of official University policy by academic personnel; a predetermination to stop appellant from reaching the doctoral level in the EPM program; a denial of academic advising to appellant; false and misleading promises regarding funding and his opportunities to continue in the doctoral program; harassment, intimidation and racial discrimination; and in ignoring of special mitigating conditions that were beyond appellant’s control. Adler reviewed each of appellant’s allegations, reviewed other documents related to the case, interviewed appellant, Bea and EPM professors Tommelein and Horvath, and discussed the case with Fenves, the EPM department chair. Adler found appellant’s allegations lacked merit based on the evidence, or were tangential to appellant’s failure to pass the spring 2004 comprehensive examination and make-up examination. Adler concluded that “the department (and its chair) in general, and the EPM program (and its head at the time, Professor Tommelein) in particular, followed normal and proper procedures in administrating the comprehensive exam and the make-up exam, as well as in conducting the follow-up to [appellant’s] failure to pass the comprehensive exam at the doctoral level.” Furthermore, “the EPM group’s decision to dismiss [appellant] from its doctoral program and Chair Fenves denial of the appeal were handled properly since it was based solely on academic grounds.”
Specifically, Adler found no “concrete evidence” to support the claim that “the faculty of the EPM program in general, and Professors Bea and Tommelein in particular, had a preconceived and well-orchestrated plan to fail [appellant] and locked his progress towards the D. Eng. degree.” Adler made clear that he reviewed appellant’s allegations and found evidence that, as he concluded, “the management of the comprehensive exams was conducted with fairness and in a professional manner,” and that the exams “were conducted according to the established rules within the program and without prejudice.”
Regarding appellant’s claim that he was without an academic advisor for the entire academic year of 2003-2004, Adler found that “it is clear that Professor Bea was assigned as a research and academic adviser to [appellant] and that Professor Tommelein assigned herself as his academic advisor for the fall semester of 2003 (replacing Professor Bea who was on sabbatical). However, it is likely that [appellant] was not formally informed about the replacement. It is clear, however, from [appellant’s] numerous communications with Professor Bea during the spring semester of 2004, that he sought his advice in academic matters. As it is typical in many doctoral programs at Berkeley, academic advising in the EPM program is rather informal and is primarily driven by the students. Unfortunately, this reality was at odds with [appellant’s] expectation of academic advising, and it is my belief that it contributed to his genuine anxiety and frustration in believing that he was not offered adequate academic advising.”
As for appellant’s claims of harassment and discrimination, Adler concluded that “[appellant] attributes several perceived actions by the faculty (such as denial of academic advising and plotting to fail him in the comprehensive exam), as racially and ethnically motivated. I have found that the preponderance of the evidence does not support these allegations. In addition, [appellant] provided details of several incidences in which he claims that he was harassed and intimidated by Professor Bea and students. These incidents are composed primarily of verbal statements allegedly made. Professor Bea either wholly denied making the alleged comments, or provided explanations for the context that indicate that appellant misunderstood both the intent and content of the comments he made. With respect to comments made by fellow students, the comments were isolated and not pervasive.”
As for appellant’s claims of false promises, Adler found that Bea, rather than having made promises of financial aid to appellant, made “presentations concerning the prospects of providing [appellant] with financial aid for the fall semester of 2003 were proper and done with good faith.”
Regarding appellant’s claim that, after his failure of the comprehensive examination, he was led to believe by Bea that “he would have the option to continue his doctoral studies within the CEE department,” Adler found that, “while the EPM program’s dismissal letter should have been more explicit and [Professor Bea’s] discussions with [appellant] regarding his options could have been clearer, it is my judgment that [appellant] misinterpreted Professor Bea’s informal discussion and advice regarding his options as decisive.”
Adler also found it “clear” from the evidence that appellant was under great stress in the semester preceding the comprehensive examination. His 3.1 grade point average was “barely above the threshold for graduate standing and quite low for a doctoral student.”
Appellant also claimed in his appeal that Bea had appointed him to a 50 percent graduate student research (GSR) position during the 2003-2004 academic year, and only later informed him that it is an unpaid position. Adler refrained from commenting on the issue because it was beyond the scope of the appeal.
Although Adler found the EPM program was justified in its actions, he nonetheless also found that there could have been better communication between appellant and the program that could have reasonably resulted in a postponement of either his taking of the comprehensive examination or the make-up examination. He recommended denying appellant’s request for reinstatement into graduate standing and D. Eng. track in Civil Engineering, but also recommended that appellant be given one more chance to pass the comprehensive examination at the doctoral level because of this “apparent miscommunication.”
After Adler had provided his report, graduate Dean Mary Ann Mason, informed appellant by letter dated May 19, 2005, that she was rejecting appellant’s misconduct allegations, but gave him another opportunity to pass the comprehensive examination. Mason also informed appellant that he was required to raise his GSR issue pursuant to a different administrative process, citing section 140 of its Academic Personnel Manual (APM).
In June 2005, an associate dean informed appellant that if he wished to retake the comprehensive examination, he would have to provide notice by the first day of the fall 2005 semester, and register for that semester. Otherwise, he would be “formally dismissed” from the CEE program.
Appellant did not register for the fall 2005 semester. Shortly after the semester began, an attorney apparently representing appellant informed the University that appellant had decided that he would like to retake the comprehensive examination, and requested that the University “unblock his student identification” so that he could do so. Counsel for the University replied by letter that appellant needed to pay his outstanding fees to remove the block on his registration, and appellant was advised directly of the need to pay these fees by the graduate division. Despite efforts to work out a payment plan with him, appellant did not make the required payments.
Appellant contended that he should only be required to retake that portion of the comprehensive examination that he had failed. However, the CEE faculty concluded that because of the unusual circumstances involved with appellant’s retaking the examination and the amount of time that had lapsed since his first effort, he should take the entire examination. The graduate division dean declined to overturn the faculty's determination.
By the end of the spring 2006 semester, appellant had not retaken the comprehensive examination. The graduate dean then sent a letter to appellant formally dismissing him from the University.
Regarding his GSR claim, appellant later claimed he sought administrative relief in May 2005, but that the University did not respond. The University contends that it has no record of appellant doing so, but that if he had it would have been untimely under APM section 140-23, which requires that a grievance be filed within 30 days from when the person knew or reasonably should have known of the acts giving rise to the grievance. The University informed appellant by letter dated July 12, 2007, of its determination that his claim was untimely.
In 2007, appellant filed a civil action against the Regents and Bea alleging claims for breach of good faith, wrongful dismissal, harassment and discrimination, intentional infliction of emotional distress, and negligence. After the trial court partially sustained defendants’ demurrer for appellant’s failure to exhaust administrative and judicial remedies, appellant filed a separate petition for writ of mandate pursuant to Code of Civil Procedure sections 1085 and 1094.5. Among other things, his petition alleged that the Regents and Bea discriminated against and disenfranchised appellant by not providing him an academic advisor; verbally abused, harassed, singled out, ridiculed, humiliated, embarrassed, maltreated and oppressed appellant; promised but failed to provide appellant a summer internship; and persuaded appellant to take a GSR position but failed to pay him for it. In a September 2007 supplemental response to his writ petition, appellant alleged that he had been improperly tested in his comprehensive examination as a Ph.D., rather than a D. Eng., student. Respondents contend this was the first time appellant raised the issue, and appellant does not cite to any place in the record prior to this time when he made this allegation.
Further statutory references are to the Code of Civil Procedure unless otherwise stated.
After reviewing the documentary evidence and arguments submitted by all the parties, the trial court denied the petition in its entirety. Regarding appellant’s claim for a writ of mandate pursuant to section 1085, the court found that he had failed to identify a mandatory duty that was violated by the Regents, and that his allegations that the Regents had failed to afford him due process prior to dismissing him as a graduate student, or that the process afforded was somehow unfair, was without merit and unsupported by evidence. Regarding appellant’s claim for an administrative writ of mandate under section 1094.5, the court found that appellant had failed to demonstrate that any of the findings which ultimately led to his dismissal were not supported by substantial evidence in light of the whole administrative record, citing section 1094.5, subdivision (c). The court’s judgment was filed on February 5, 2008, and mail-served by University counsel to appellant on February 7, 2008. Appellant then filed a notice of appeal.
DISCUSSION
A pro per “litigant is restricted to the same rules of procedure as is required of those qualified to practice before our courts.” (Harding v. Collazo (1986) 177 Cal.App.3d 1044, 1055.)
I. Writ Petition and Relief
As respondents point out, appellant, although he filed a notice of appeal in February 2008, and subsequently filed an “appellant’s opening brief and memorandum of points and authorities,” on July 21, 2008, included in these papers without explanation a writ petition to this court, and requests as relief that we issue a peremptory writ and, alternatively, an alternative writ to the superior court. “An appellate court may consider a petition for an extraordinary writ at any time [citation], but has discretion to deny a petition filed after the 60-day period applicable to appeals, and should do so absent ‘extraordinary circumstances’ justifying the delay.” (Popelka, Allard, McCowan & Jones v. Superior Court (1980) 107 Cal.App.3d 496, 499.) Accordingly, the petition is denied.
II. Appellant’s Appellate Presentation
Although not raised by respondents, we are compelled by the state of appellant’s submissions to point out that, to the extent we were to construe his papers as seeking appellate relief, there are numerous problems with his presentation that are grounds alone to deny his appeal.
“ ‘A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.’ ” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) It is the appellant’s burden to affirmatively show error. (Lennane v. Franchise Tax Bd. (1996) 51 Cal.App.4th 1180, 1189.) If he fails to do so, we must affirm the trial court’s judgment.
Furthermore, “ ‘[i]t is well established that a reviewing court starts with the presumption that the record contains evidence to sustain every finding of fact.’ ” (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) If a party contends that “ ‘some particular issue of fact is not sustained, they are required to set forth in their brief all of the material evidence on the point and not merely their own evidence. Unless this is done the error is waived.’ ” (Ibid., followed in Benson v. Kwikset Corp. (2007) 152 Cal.App.4th 1254, 1273.)
We may disregard issues not properly addressed in the briefs, and may treat them as having been abandoned or waived. (See, e.g., People v. Stanley (1995) 10 Cal.4th 764, 793; Tiernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211, 216.) “ ‘[E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration.’ ” (Stanley, at p. 793.) In addition, “[i]n reaching a decision on appeal an appellate court is governed by the record; will not consider facts having no support in the record; and will disregard statements of such facts set forth in a brief.” (Oldenkott v. American Electric, Inc. (1971) 14 Cal.App.3d 198, 207.)
Appellant’s arguments are rife with factual assertions that are not supported by record citations, and it appears that he contends various facts that are not contained in the record. While he does cite certain facts in the record, he does not meaningfully discuss the substantial evidence in the record that supports his dismissal. He cites some legal authority, but fails to explain how this authority relates to a particular error by the superior court or University; to the extent he does provide an explanation, his legal arguments are cursory, and unsupported by sufficient evidentiary support. Appellant makes no effort to summarize the evidence that supports respondents’ position. Furthermore, at the center of his opening brief, and repeated in his reply brief, are 10 questions appellant poses for this court to consider, but he fails to provide answers to them that are supported by appropriate legal argument or citations to the record.
In addition, appellant provides various new legal arguments in his reply brief, such as regarding the “eggshell” theory in tort and his assertion that the trial court should have asserted an independent standard of review of the administrative proceedings because of the nature of the rights involved. We disregard those arguments presented for the first time in his reply brief without sufficient explanation as untimely. (See, e.g., Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 894, fn. 10.) “Points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before.” (Campos v. Anderson (1997) 57 Cal.App.4th 784, 794, fn. 3.)
Appellant’s numerous errors in the presentation of his appeal are independent bases for denying the relief he seeks, even if we construe his papers as requesting appropriate appellate relief.
III. Standard of Review
We briefly consider the merits of appellant’s arguments as well. Appellant brought his petition pursuant to the mandamus provisions of sections 1085 and 1094.5. Administrative decisions resulting from procedures that do not require hearing are reviewed under section 1085, regarding ordinary mandate. (Bunnett v. Regents of University of California (1995) 35 Cal.App.4th 843, 848.) Any “final administrative order in which by law hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal, corporation, board or officer” is reviewed pursuant to section 1094.5. (§ 1094.5, subd. (a).)
“ ‘The nature of an issue on appeal determines the appellate court's standard of review in an administrative mandamus case. Questions of law . . . are given a de novo review . . . . [Citation.] [¶] In examining the findings in a [section] 1094.5 case, reviewing courts apply the substantial evidence test. That test is applied to the trial court's findings if a fundamental vested right is involved or substantially affected and the trial court exercised its independent judgment in examining the administrative decision. [Citation.] On the other hand, if no fundamental vested right presents in the case and the trial court applied the substantial evidence test, then the reviewing court's task is the same as the trial court's—examination, under the substantial evidence test, of the administrative agency's findings. [Citation.] When an appellate court examines the administrative findings and determines they are supported by substantial evidence, the court then determines whether those findings support the administrative order or decision.” (Auerbach v. Los Angeles County Assessment Appeals Bd. No. 2 (2008) 167 Cal.App.4th 1428, 1437; see Bridgeman v. McPherson (2006) 141 Cal.App.4th 277 [appellate courts conduct a substantial evidence standard of review for section 1085 matters].)
“Substantial evidence” is “evidence ‘of ponderable, legal significance, . . . reasonable in nature, credible, and of solid value.’ ” (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873.) “When a . . . factual determination is attacked on the grounds that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination . . . .” (Id. at pp. 873-874.)
Appellant argues his due process rights were violated and, for the first time in his reply brief, that we should conduct an independent review of the record because the administrative decision substantially affects vested, fundamental rights. As we have indicated, we disregard this independent review argument as untimely. (See, e.g., Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc., supra, 78 Cal.App.4th at p. 894, fn. 10.)
In any event, we see no reason why, whether appellant brought his petition pursuant to section 1085 or 1094.5, we should review the University’s dismissal of him pursuant to anything other than a substantial evidence standard, keeping in mind the due process rights of students as we do so. The California Supreme Court has observed that “the Regents, to be effective, must have considerable discretion to determine how best to carry out the university's educational mission.” (Smith v. Regents of the University of California (1993) 4 Cal.4th 843, 852-853; see also Banks v. Dominican College (1995) 35 Cal.App.4th 1545, 1551 [exercising a “highly deferential and limited standard of review” regarding challenges to an academic decision regarding a student’s degree qualifications].) “[T]he determination whether to dismiss a student for academic reasons requires an expert evaluation of cumulative information and is not readily adapted to the procedural tools of judicial or administrative decisionmaking.” (Board of Curators, Univ. of Mo. v. Horowitz (1978) 435 U.S. 78, 90.)
We also take note from our independent research that Division One of this District, in reviewing the lower court’s rulings regarding a petition for writ of mandate brought by a dismissed University of California medical student, considered the extent of permissible judicial review of the medical school’s dismissal of the student for academic reasons. In Wong v. Regents of the University of California (1971) 15 Cal.App.3d 823, 830, the court quoted approvingly from another case regarding the questions it should consider: “ ‘[T]he first is, was the student in fact delinquent in his studies or unfit for the practice of medicine? The second question is, were the school authorities motivated by malice or bad faith in dismissing the student, or did they act arbitrarily or capriciously? In general, the first question is not a matter for judicial review. However, a student dismissal motivated by bad faith, arbitrariness or capriciousness may be actionable.’ ” (Ibid.)
Thus, when the Fourth District reviewed an appeal by a University of California, Irvine (UCI) graduate student of a trial court’s grant of summary judgment in favor of the Regents, after UCI’s History Department denied the student advancement in its Ph.D. program for academic reasons, the court stated:
“Procedural due process does not require a university to provide a student a formal hearing but is satisfied if the university informs the student of its dissatisfaction with the student’s academic performance, it informs the student of the consequences of deficient performance, and a decision regarding the student’s academic progress is careful and deliberate. [Citation] When reviewing an academic decision for substantive due process, courts should show ‘great respect for the faculty’s professional judgment’ and may not override a faculty’s academic decision unless it is ‘such a substantial departure from accepted academic norms as to demonstrate that the person or committee responsible did not actually exercise professional judgment.’ ” (Lachtman v. Regents of the University of California (2007) 158 Cal.App.4th 187, 192.)
Accordingly, we review the record to determine whether substantial evidence supports the University’s dismissal, and whether the administrative procedures employed afforded him due process.
IV. The University’s Treatment, Testing, and Dismissal of Appellant
Appellant argues that the University improperly dismissed him because he was not required to take the comprehensive examination as a D. Eng. student, was not subject to the same testing standards as other doctoral students, and was discriminated against by being required to take a comprehensive examination purportedly designed for Ph.D. candidates when he was a D. Eng. student. These arguments lack merit.
First, as respondents point out, appellant fails to establish that he raised these arguments in the course of the University’s graduate appellate procedures. To the extent appellant brought his claims pursuant to section 1094.5, our own research indicates that “appellate review is limited to issues in the record at the administrative level. . . . ‘The rule compelling a party to present all legitimate issues before the administrative tribunal is required in order to preserve the integrity of the proceedings before that body and to endow them with a dignity beyond that of a mere shadow-play.’ ” (City of Walnut Creek v. County of Contra Costa (1980) 101 Cal.App.3d 1012, 1019-1020.) Thus, although waiver is not expressly argued by respondents, we conclude appellant, for purposes of his section 1094.5 claims, has waived his “D. Eng. versus Ph.D.” issues by failing to first raise them in the University’s administrative process.
We also reject appellant’s arguments on their merits. Appellant argues that the University breached its “mandatory duty” to afford him due process guaranteed by the Fourteenth Amendment by refusing his request for a hearing in June 2006, at the time that he was dismissed. However, the record indicates that the University provided him with multiple opportunities to pass the comprehensive examination, and engaged in a careful and deliberative review of his appeal, and the underlying evidence, before dismissing him. Appellant fails to explain why this process was insufficient, or explain the relevance of the case law he cites in light of the extended process the University engaged in consistent with its established graduate appellate procedures prior to dismissing him.
Furthermore, substantial evidence supports the University's dismissal of him for academic reasons after he was tested in accordance with the University’s usual policies and procedures, as Adler concluded in his report. Appellant argues, based on constitutional and state laws, including Education Code sections 55070, 66010, 66030 et seq., 66270 et seq., and Government Code sections 815.6 and 11135, subdivision (a), that the University breached its “mandatory duty” to “to provide the appellant an education that is equitable, devoid of any, and all forms of discrimination, and an education that provides the appellant reasonable opportunity to develop fully his potential as a professional Doctoral of Engineering student.” According to appellant, the Regents “breached this duty, failed to test the appellant as a Doctor of Engineering student but forced, coerced, harassed, and intimidated the appellant to be tested as a Doctor of Philosophy student[.]” His arguments appear to be based on his contentions that he was “reclassified” as a Ph.D. student for the sole purpose of dismissing him and that he was tested improperly as a Ph.D., rather than a D. Eng., student. He does not point to any concrete evidence that he was reclassified, however, pointing instead to such things as correspondence from Fenves in 2006 to an associate dean of the graduate division that requested appellant’s dismissal which stated that “[p]assage of this examination with a satisfactory score is required for the Ph.D. Degree program,” and a March 2005 exchange between Tommelein and Adler during an interview as follows:
“Adler: You mean a doctor of engineering student does not need to take the comprehensive exam?
“Tommelein: Yes, it’s just that I have always thought of [appellant] as being a Ph.D. student.”
Tommelien also stated that “as I now know, he was in the doctor of engineering program. However, we treated him as a Ph.D. student.”
Appellant’s reliance on this evidence, however, also ignores the substantial evidence in the record indicating that all EPM doctoral students, whether D. Eng. or Ph.D, took the same comprehensive examinations. The program’s degree requirements as posted on the University’s website, according to a January 31, 2005 memorandum from Tommelein to the graduate division’s Diane Hill, states specifically with regard to doctor of engineering and doctor of philosophy candidates in the EPM program: “Within the Engineering and Project Management Program, the first step toward a doctoral degree is passing the comprehensive exam at the doctoral level (see description of the comprehensive exam below).”
The comprehensive examination is described as “a closed book written test of a student’s general knowledge of engineering and project management. . . . The questions are not necessarily based on specific courses. Answers should reflect a student's comprehensive understanding of the field of engineering and project management, command of course material, and ability to link the material presented in different courses.”
Tommelein stated in her memo, which was in response to appellant’s administrative appeal, that “[t]he process the faculty followed in evaluating [appellant] is consistent with what is spelled out on these pages. Passing the comprehensive exam with a Ph.D./DE candidate pass is a requirement for students to continue in the doctoral program.”
Furthermore, the substantial evidence contained in the record and considered by Adler in his report indicates appellant was treated and tested as a D. Eng. student in accordance with the EPM program’s usual practices and procedures, and without prejudice. In his report, Adler repeatedly refers to appellant as a D. Eng. candidate.
Appellant also does not establish that he was forced, coerced, harassed, intimidated, prejudiced or discriminated against because the University required him, as a D. Eng. student, to take what he characterizes as a Ph.D. examination. Appellant fails to establish that he has a legal basis for this claim, and does not submit sufficient facts to support his contentions; for example, he does not establish that he did not receive the training needed to answer the comprehensive examination or make-up examination questions, or that the tests given to him were inappropriate for D. Eng. candidates, regardless of whether or not these tests were appropriate for Ph.D. candidates.
Appellant makes numerous other arguments in support of his positions, including that the superior court considered an administrative record that “was posthumously procured and full of extraneous materials”; that the superior court “failed to consider the covenant of good faith and fair dealing brought against the respondents, but expressed the view that the respondent Regents did not owe the appellant any mandatory duty,” “avoided any opinion on the breach of the appellant’s admission agreement which was the sole cause of the appellant’s admission,” and avoided the “obvious facts” that “as a D. Eng student, the appellant is not required to take and pass the comprehensive examination;” that “[d]uring the hearing, the appellant provide, or furnished the trial court with sufficient oral evidence in support of all the claims contained in this opening brief”; that the University was not entitled to insist that he pay his outstanding fees before allowing his registration in 2006; that the University improperly ignored his request for a hearing when he was dismissed in 2006; that the trial court prejudicially abused its discretion by dismissing his writ action in its entirety; that Bea breached a covenant of good faith and fair dealing regarding a promise to provide appellant with a summer internship; and that a purported immunity defense by the University does not apply, which defense the University denies asserting.
Appellant’s arguments lack merit. The causes of action that he included in his writ petition to the superior court, such as for breach of the covenant of good faith and fair dealing, are not relevant to the court’s review of his writ petition regarding his dismissal, and the court properly denied them in its judgment. Appellant’s arguments and contentions are not supported by legal or factual argument that are sufficient for this court to consider in any meaningful way, and, therefore, are unpersuasive. To the extent he refers to facts contained in the record, he in effect asks us to reweigh the evidence, which we will not do under a substantial evidence standard of review.
In short, there is substantial evidence, as summarized in Adler’s report, to support the University’s dismissal of appellant for academic reasons, which the University formally did in June 2006 in accordance with its usual practices and procedures after affording appellant sufficient due process. The University was entitled to dismiss appellant because he did not pass the comprehensive examination and make-up examination at the doctoral level. We find no factual or legal basis for appellant’s assertion that he was entitled to further proceedings at the time of his 2006 dismissal, the University having completed its graduate appellate procedures regarding his appeal. Accordingly, appellant’s appellate arguments are not a basis for reversing the trial court’s judgment.
V. Appellant’s GSR Compensation Claim
Appellant also argues that the superior court should have addressed his GSR compensation claim. This is incorrect because appellant did not first exhaust his administrative remedies.
The trial court denied appellant’s petition in its entirety, including his GSR allegations, and the record indicates that the University provided its students with an administrative remedy for GSR compensation claims via APM 140, which required that a claim be made within 30 days of notice. The Fourth District specifically held, regarding a claim by the University of California, Irvine graduate student that she had not been paid for her GSR work, that “the University academic personnel policies in the APM controlled the terms of . . . employment and ‘have the force and effect of statute.’ [Citation.] . . . The APM sets forth step-by-step procedures for grievance resolution . . . .” (Lachtman v. Regents of the University of California, supra, 158 Cal.App.4th at p. 198.) The exhaustion of administrative remedies is a “jurisdictional prerequisite” for resort to the courts when administrative relief is available. (See Campbell v. Regents of University of California (2005) 35 Cal.4th 311, 321.)
The record supports the trial court’s determination. Appellant, if he made any claim, indisputably did so in an untimely manner. He contended below that he should have, but was not, paid for work he performed as a GSR during the spring 2004 semester, but first raised the issue many months after the 30-day limit established by APM 140, even if one assumes he did so properly in his December 2004 formal appeal to the graduate dean. Therefore, he failed to exhaust his administrative remedies and was barred from pursuing his claim in court. “The fact that the remedy is no longer available does not, of course, alter application of the doctrine[.]” (Roth v. City of Los Angeles (1975) 53 Cal.App.3d 679, 687.) Regardless, there is substantial evidence that Bea never promised to pay appellant as a GSR, in the form of Bea’s own statements under oath in his declaration submitted to the superior court. Accordingly, appellant’s GSR argument is without merit.
DISPOSITION
Appellant’s writ petition is denied. The superior court’s judgment is affirmed. Respondents are awarded costs on appeal.
We concur: Kline, P.J., Haerle, J.