Zochlinski
v. Regents

















Filed
1/10/13 Zochlinski v. Regents CA3













NOT TO BE PUBLISHED







California Rules of Court, rule 8.1115(a), prohibits
courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115>.





IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD
APPELLATE DISTRICT

(Yolo)

----






>

HOWARD ALAN ZOCHLINSKI, Plaintiff and Appellant, v. THE REGENTS OF THE UNIVERSITY OF CALIFORNIA et al., Defendants and Respondents.

C064600 (Super. Ct. No. CVPT080003413) C065103 (Super. Ct. No. CVPT070000009)

In
these consolidated appeals, petitioner Howard Zochlinski challenges the trial
court’s denial of his petitions for writ of mandate, continuing his efforts to
obtain a Ph.D. in genetics from the University
of California,
Davis (UC Davis), after being disqualified from the genetics graduate department
in 1993. In one appeal (No. C065103) he
contends the dean of the graduate program lacked authority to reject a decision
by the representative assembly of the academic senate to reinstate Zochlinski
to the graduate program, and the trial court erred in upholding the dean’s
decision. In the other appeal (No.
C064600) he contends UC Davis abused its discretion in failing to retroactively
award him a Ph.D. under what Zochlinski calls the “Three Paper Rule,” and the trial
court erred in its interpretation of the applicable bylaws, rules and
regulations. In both appeals, Zochlinski
maintains the trial court applied the wrong standard of review.href="#_ftn1" name="_ftnref1" title="">[1]

In
part I we conclude the trial court applied the appropriate standard of review
in both cases. In part II we conclude
the trial court correctly determined that the dean of the graduate program did
not abuse his discretion in declining to reinstate Zochlinski. And in part III we conclude the trial court
correctly determined that UC Davis did not abuse its discretion in declining to
award Zochlinski a Ph.D.

We
will affirm the judgments.

BACKGROUND

Appeal No. C065103

Zochlinski
was admitted to the Ph.D. program of the UC Davis genetics graduate group in
September 1984. Thereafter, he
experienced a series of academic difficulties, which led to warnings of
possible disqualification from the program.
Zochlinski was placed on academic probation due to a low grade point
average in 1986, and in 1989 was informed he was making unsatisfactory progress
to obtain his degree. His dissertation
committee approved a topic on the genetics of aging and, after several
extensions, set December
31, 1992, as a final deadline for completion of
his dissertation.

Zochlinski
turned in a dissertation by the deadline, but his dissertation committee
concluded that ‘[b]ased on repeated missed deadlines and the quality of the
final document, we believe the dissertation does not measure up to the Ph.D.
standard. Therefore, we recommend
dismissal from the Graduate Program.”
The committee recommended that he receive a master’s degree in genetics
instead. The dean of graduate studies,
Donald Curry, concurred and notified Zochlinski on January 28, 1993.

Zochlinski
asked Dean Curry for the opportunity to submit a revised draft, claiming that
the emotional trauma
caused by his arrest on a stalking charge in mid-November 1992 interfered with
his academic work.href="#_ftn2"
name="_ftnref2" title="">[2] Dean Curry submitted the reworked
dissertation to the dissertation committee, noting that “it would certainly be
a tragedy if a student did indeed have the capability to submit an acceptable
dissertation, but due to extenuating and mitigating circumstances, failed to
demonstrate the potential by knowingly submitting an unacceptable draft solely
to meet a deadline.” However, he stated
that if the committee agreed unanimously that the “second version still
fail[ed] to ‘measure up to the Ph.D. standard,’ then that decision will
prevail,” emphasizing that their academic judgment would be final.

The
committee unanimously rejected the revised dissertation. One committee member observed that it failed
to follow the agreed upon format, and another observed that it lacked focus and
logical progression. The third member
stated that considering the amount of time extended to Zochlinski and the fact
his revised dissertation showed very little improvement, it was unlikely
Zochlinski would be able to submit an acceptable dissertation within a
reasonable period of time. Based on the
committee’s judgment, Dean Curry rejected Zochlinski’s appeal.

Over
the next decade, Zochlinski filed numerous grievances, appeals, and lawsuits,
none of which were successful.href="#_ftn3" name="_ftnref3" title="">[3] Between January 1993 and August 2001, his
disqualification was reviewed by the UC Davis graduate council, several deans
of graduate studies, and the chair and vice chair of the UC Davis academic
senate.

At
this juncture, it is helpful to discuss the structural hierarchy of the University
of California. The California Constitution grants governance
authority over the University
of California
to The Regents of the University
of California
(the Regents). (Cal.
Const., art. IX, § 9.) The Regents
authorized the formation of the academic senate. The academic senate, “subject to the approval
of the Board [of Regents], shall determine the conditions for admission, for
certificates, and for degrees other than honorary degrees. It shall recommend to the President all
candidates for degrees in course . . . .” (Standing order of the Regents, § 105.2(a).) Each campus of the University
of California
has its own “division” of the academic senate, which, in general, exercises the
authority of the academic senate over the campus. (Academic senate bylaw 305.) The Davis
division has established a number of subsidiary bodies, several of which are
relevant to this action. The
representative assembly, the division’s primary legislative body, is made up of
representatives of each of the campus’s academic departments. (Davis
academic senate bylaw 34.A.) The Davis
executive council is a smaller body comprised of leaders of key
committees. (Davis
academic senate bylaw 73.) The executive
council has formed a student petitions subcommittee to decide certain student
petitions. (Davis
academic senate bylaw 73; legislative ruling 7.07.)

On
February
12, 2004, Zochlinski wrote to the chair of the Davis
division of the academic senate, petitioning for the Davis
representative assembly “to overturn [his] 1993 disqualification from graduate
study in genetics and the subsequent denial of [his] appeal.” Zochlinski repeated the same arguments he had
asserted in his earlier appeals. A
special student petitions committee appointed to review the matter issued a
report that found “no basis to support the petition,” agreed with “the denials
of his previous appeals,” and recommended that “the current petition be denied
as well.”

On
February
28, 2005, the representative assembly heard
Zochlinski’s petition in open session.
It voted that Zochlinski should be reinstated “as a graduate student
advanced to candidacy . . . with full credit for past work.” The representative assembly resolution made
no findings and gave no rationale for its vote.
The only evidence of its reasoning was a subsequent explanation by
Academic Senate Chair Daniel Simmons to Graduate Studies Dean Gibeling,
stating: “At the Representative Assembly
meeting Mr. Zochlinski and his faculty supporters asserted that Mr.
Zochlinski’s dissertation committee, and subsequently members of the Graduate
Council hearing his dismissal appeals, did not appropriately take into account
Mr. Zochlinski’s troubles with the police stemming from stalking charges.
. . . I think that the record
is clear that the dissertation submitted by Mr. Zochlinski was substandard. The issue debated by the Assembly was not the
quality of the dissertation, but whether Mr. Zochlinski was given an
appropriate opportunity to complete his work in light of the difficulties that
he faced at the time.”

The
assembly’s resolution implicated a disputed policy question regarding authority
over graduate student disqualification within UC Davis. The dispute concerned whether systemwide
academic senate regulation 904 (Senate Regulation 904), which provides that
“[d]isqualification of graduate students is at the discretion of the Dean of
the Graduate Division concerned,” conflicted with academic senate bylaws and
the standing orders of the Regents. This
uncertainty led the Davis division committee on elections, rules, and
jurisdiction (CERJ) to request a legislative ruling from UC Davis’s academic
senate committee on rules and jurisdiction (UCRJ) to clarify whether
disqualification and/or reinstatement of graduate students was at the
discretion of the dean of graduate studies, as provided in Senate Regulation
904.

Dean
Gibeling advised the chair of the Davis academic senate that “Graduate Studies
cannot respond [to the representative assembly’s resolution] until a
determination has been made regarding whether the Representative Assembly’s action
is advisory or binding.” Dean Gibeling
confirmed the parties’ understanding that “if UCRJ determines that the
delegation of authority for disqualification matters was properly delegated to
the Dean, then the Senate’s position will be that its February 28, 2005
action is advisory only.”

The
UCRJ ultimately upheld the validity of Senate Regulation 904 with legislative
ruling 6.06, which states that the regulation “is consistent with the Code of
the Academic Senate. Any Division
wishing to assume responsibility for the disqualification of graduate students
must submit a request for a variance to Senate Regulation 904, in accordance
with Senate Bylaw 80.D.” Thereafter,
Dean Gibeling reviewed the record and determined not to reverse the
disqualification or reinstate Zochlinski.
Because Zochlinski claimed Gibeling was biased, Gibeling requested that
Interim Provost and Executive Vice Chancellor Barbara Horwitz, the second
highest ranking academic official on the Davis campus, independently review his
decision. On June 7, 2008, Provost
Horwitz concurred with Dean Gibeling in a lengthy written decision.

Meanwhile,
on January 2, 2007, Zochlinski filed a petition for writ of mandate (with
subheadings entitled writ of mandate A, B and C) and writ of prohibition. He challenged the decision not to reinstate
him and named the Regents of the University of California, Gibeling and various
other individuals as respondents.
Zochlinski alleged that respondents’ decision was based on racial animus
or for reasons of personal animus, and was in retaliation for Zochlinski’s
whistleblowing, exercise of his constitutional
rights, and his status as an Orthodox Jew.
Zochlinski asserted that “Gibeling’s psychopathology . . . is
the cause of the current situation” as well as “his near-psychotic abuse of
discretion and lust for power . . . .” He maintained further that “[n]umerous people
in the systemwide senate in Oakland are simply weak [and were probably chosen
for that reason] and would not act properly or fairly in [his] case.” Zochlinski alleged that UC Davis “has an
extensive history of corruption & cover-up involving racism & misogyny;
with minority individuals and women are far more likely to be victimized than
White Christian males.”

Respondents
filed a demurrer on various grounds, including that Zochlinski’s petition
failed to state a cause of action.

In
ruling on the demurrer, the trial court observed that Zochlinski’s “simple
petition” did not require “a 73-page dissertation,” and suggested that in the
interest of efficiency Zochlinski should present a clear and concise statement
of his claims in all future filings with the court. The trial court stated, “Paring the extraneous
allegations from the petition, [Zochlinski] asks the court only for an order
(1) enforcing the February 28, 2005, vote by the Representative Assembly
of the Academic Senate-Davis Division to reinstate [Zochlinski] to the UC Davis
Genetics Ph.D. program, and (2) finding that Legislative Ruling 6.06 has no
impact on [his] case.”

The
trial court overruled respondents’ demurrer to writ of mandate A, finding that
the petition sufficiently alleged that respondents acted in an arbitrary and
capricious manner when they refused to abide by the vote of the representative
assembly. It sustained the demurrer to
writ of mandate B without leave to amend, observing that judicially noticed
matters established that the rules of the Davis division did not take precedence
over the bylaws, standing orders, and/or regulations of the systemwide academic
senate. As for the demurrers to writ of
mandate C and the writ of prohibition, the trial court sustained the demurrers
with leave to amend.

In
July 2008, Zochlinski filed an amended petition for writ of mandate and
respondents demurred again.

The
hearing on the demurrer was delayed repeatedly at Zochlinski’s request, and the
matter was not heard until September 2009.
The trial court sustained the demurrer to all but one cause of action
(labeled writ of mandate A), regarding respondents’ rejection of the
representative assembly’s decision. The
trial court granted leave to file a second amended petition by no later than
October 15, 2009, and warned Zochlinski it was “not inclined to grant any
request for a continuance of this deadline.”


Zochlinski
failed to file his second amended petition by the deadline and made an ex parte
request for an extension of time.
Finding no good cause for an extension, the trial court denied the
request. Undeterred by the trial court’s
order, Zochlinski filed a second amended petition. In addition to writ of mandate A, Zochlinski
asserted another writ of mandate B and C, which asked the trial court “to
consider the legality of the initial disqualification” and to determine the
legality of the hold that Zochlinski alleged had been placed on his transcripts
and degrees. Thereafter, Zochlinski
filed a motion to file the second amended petition late.

On
March 29, 2010, the trial court denied Zochlinski’s motion to file the second
amended petition late, finding that he simply reargued the ex parte application
that had been denied previously. The
trial court also decided the remaining cause of action in the proceeding (writ
of mandate A), stating “the issue before the Court is a narrow one: whether the respondents acted in an arbitrary
or capricious manner when they decided not to adopt the Representative
Assembly’s February 28, 2005, decision . . . .” The trial court concluded that “what the
Representative Assembly actually did in its February 28, 2005, decision is to
reverse the Dean of Graduate Studies’ April 7, 1993, disqualification
decision,” and that the representative assembly lacked authority under
university policies to do so. Thus, “the
Dean of Graduate Studies had the discretion to reject the Representative
Assembly’s February 28, 2005, recommendation.”
Acting as the dean’s designee, Provost Horwitz reviewed an extensive
record and concluded that Zochlinski “was given adequate opportunities to
complete his dissertation and his ‘personal difficulties’ were considered when
the appeals of his disqualification were rejected.” The decision not to adopt the representative
assembly’s recommendation was “well reasoned and . . . based on a
careful consideration of the record.”
Accordingly, the trial court denied Zochlinski’s petition for writ of
mandate.

Appeal
No. C064600

On
February 13, 2008, while Zochlinski’s challenge to Gibeling’s decision not to
overturn his disqualification and reinstate him was pending, Zochlinski wrote
to Professor Linda Bisson, then chair of the academic senate, asking that she
“consider this document a formal petition to the Representative Assembly of the
Academic Senate” to grant him his Ph.D. in genetics. In Zochlinski’s estimation, he met the
December 1992 deadline to submit his dissertation pursuant to the Three Paper
Rule. According to Zochlinski, the Three
Paper Rule “is an informal policy of many departments and groups, particularly
in the sciences, under which it was stated that co-authorship of three research
papers emanating from the same laboratory, published in recognized
peer-reviewed journals would constitute sufficient effort and proof of
competency on the part of a graduate student to meet the requirements for a
Ph.D. degree.” In his petition,
Zochlinski conceded that “mere co-authorship was not sufficient--the
[dissertation] committee members must agree as to the candidate warranting a
Ph.D. and set the criteria for the final written form of the thesis.”

Zochlinski
contended he should be granted the Ph.D. based on two published papers on which
he was credited as sixth author, and another paper on which he was credited as
third author. The papers concerned
feline immunodeficiency virus (FIV), not the genetics of aging, which was the
topic that had been approved for his dissertation. Zochlinski also submitted letters of support
from two of the three members of his former dissertation committee, Professor
Janet Yamamoto, who was by then a faculty member at the University of Florida,
and Professor Murray Gardner, who was on emeritus status. Both professors expressed sympathy for
Zochlinski’s current situation, but neither stated that Zochlinski had wanted,
or had been approved, to pursue a Ph.D. on FIV.


The
current graduate studies website instructs students: “If approved by the thesis or dissertation
committee, reports of research undertaken during graduate study at UC Davis
which have been published may be accepted in printed form as all or part of the
master’s thesis or doctoral dissertation.
If you are not the sole or first author of the published material
submitted, the use of co-authored materials must be approved by the department
or graduate group concerned.”

The
graduate student handbook from the early 1990’s similarly provided: “5. What about use of co-authored
materials? The thesis or dissertation
may be presented wholly or partly in printed form. Unless the student is the sole author of the
published material, the use of co-authored materials must be approved in
principal [sic] by the department or
graduate group concerned. Any department
or graduate group which desires to allow the use of co-authored printed
material should inform the Graduate Division.
With approval of the appropriate thesis or dissertation committees, the
Graduate Division will accept theses [thesis] or dissertations containing such
material.”

On
March 10, 2008, the secretary of the Davis division of the academic senate
notified Zochlinski that, pursuant to legislative ruling 11.05, “no student
petition need be forwarded to the Representative Assembly as a matter of
right.” Rather, she would refer
Zochlinski’s petition to the student petitions subcommittee, which was
established over two years earlier and had authority over student petitions
directed to the Davis division.

Legislative
ruling 11.05 was issued by the previously mentioned CERJ, which is authorized
to issue rulings interpreting the code of the Davis division of the academic
senate. (Davis academic senate bylaw
71.B.6.) Legislative ruling 11.05 states
that the representative assembly “has the authority to accept, reject, or
modify the judgment of any committee with respect to the subject of a student
petition,” but that “the Assembly is not required to consider or take any
action on any given student petition.”
In addition, student petitions “are received by the Secretary [of the
Davis division], who may refer each petition to an appropriate committee.” Legislative ruling 7.07 provided that appeals
of committee decisions on student matters “are generally referred (at the
discretion of the Secretary) to the Student Petitions Subcommittee of the
Executive Council.”

On
March 19, 2008, the secretary forwarded Zochlinski’s petition and the
supporting letters to the student petitions subcommittee, which was comprised
of five members of the UC Davis faculty.
The subcommittee obtained information regarding pertinent UC Davis
policies, information regarding the genetics graduate group, and procedural
advice from the academic senate parliamentarian. On June 26, 2008, the subcommittee issued its
decision denying Zochlinski’s petition.
It noted that Zochlinski requested that he “ ‘be granted my degree based
on having met the research requirements for a Ph.D. degree in genetics as of
December 1992.’ ” Relying on the
policies governing the use of co-authored materials, the subcommittee was
“unable to grant a Ph.D. to [Zochlinski] because the co-authored materials were
not approved for use by [his] dissertation committee.”

On
July 18, 2008, Zochlinski sent an email to the subcommittee members requesting
“immediate reconsideration or, more appropriately, presentation of the issue to
the Representative Assembly of the Academic Senate for a vote on granting my
Ph.D. in Genetics.” He questioned the
application of legislative rulings 7.07 and 11.05 to refer the matter to the
subcommittee rather than the representative assembly of the academic senate,
arguing he was “grandfathered” in because his issues predated the rule
changes.

On
September 15, 2008, Robert Powell, the new chair of the Davis academic senate,
advised Zochlinski that because legislative rulings 7.07 and 11.05 were
procedural rules, they were effective immediately upon issuance and applied to
Zochlinski’s petition. Under those
rules, the student petitions subcommittee was not required to consider
repetitive petitions, and students had no right to have a petition placed
before the representative assembly.

On
December 22, 2008, Zochlinski filed a petition for writ of mandate, seeking to
overturn the student petitions subcommittee’s denial of his petition to be
awarded a Ph.D. under the Three Paper Rule.
He also sought a writ of prohibition requiring the University of
California “to immediately end its ‘policy, custom and practice’ of retaliation
against individuals engaging in activities for the enforcement of their civil
rights” and requiring respondents to “immediately cease all retaliatory
activities against [him].” Zochlinski
sought unspecified damages and other relief, including “[t]he immediate award
of a Ph.D. degree, with full benefits accorded thereto,” and “employment as a
tenured faculty member.”

The
trial court issued a tentative ruling the day before the hearing, and
Zochlinski requested oral argument. After hearing argument from both parties, the
trial court denied the writ on January 19, 2010. The trial court found that the denial of
Zochlinski’s petition for a Ph.D. under the Three Paper Rule was not arbitrary
and capricious because “[t]here is no evidence that the Genetics department or
graduate group approved or would have approved [Zochlinski’s] use of
co-authored materials,” nor that his “dissertation committee approved a
dissertation on [FIV], which is the topic of the articles [he]
co-authored.” In fact, the record was to
the contrary given that the committee approved a dissertation on “The Cell
Cycle and Aging” written “in the form of an NIH RO1 grant proposal.”

The
trial court noted that the examples submitted by Zochlinski of Three Paper Rule
Ph.D. dissertations included approval signatures by the three members of each
individual’s dissertation committee. The
trial court also questioned the sufficiency of the “approvals” from two of
Zochlinski’s former dissertation committee members 15 years after Zochlinski
was disqualified from the program, given that a dissertation committee must
have three members and at least two must be members of the genetics graduate
group. Zochlinski no longer had a dissertation
committee because one member was deceased, another was on emeritus status and
the third was no longer with the UC Davis faculty. As for Zochlinski’s proposal that a new
dissertation committee be formed, the trial court noted that such a remedy was
not supported by any rule or competent evidence.

The
trial court also found that Robert Powell’s denial of Zochlinski’s request for
reconsideration before the student petitions subcommittee or before the
representative assembly was not arbitrary and capricious. Under the applicable rules, the student
petitions subcommittee was the appropriate entity to review the issue. Powell determined that the subcommittee had
carefully considered Zochlinski’s petition and there was no need for it to
revisit the matter.

In
addition, the trial court denied Zochlinski’s petition for a writ of
prohibition in which he sought an order that respondents “cease any and all
current and . . . future interference with [Zochlinski’s] education
or career in any manner” and that the University of California “immediately end
its ‘policy, custom and practice’ of retaliation against individuals engaging
in activities for the enforcement of their civil rights . . . .” The trial court observed that a writ of
prohibition arrests the proceedings of an entity or person exercising judicial
functions, when such proceedings are without or in excess of the jurisdiction
of the entity or person. (Code Civ.
Proc., § 1102.) It denied the petition
because Zochlinski did not produce any evidence of any threatened or pending
judicial act or any further judicial proceedings by the respondents that were
without or in excess of jurisdiction.

STANDARD
OF REVIEW

In
a challenge to a judgment, it is the appellant’s burden to establish error by presenting
legal authority on each point made and factual analysis supported by
appropriate citations to the material facts in the appellate record. If the appellant fails to do so, the claim of
error is forfeited. (Badie v. Bank of
America (1998) 67 Cal.App.4th 779, 784-785; Reyes v. Kosha (1998) 65
Cal.App.4th 451, 466, fn. 6; Guthrey v. State of California (1998) 63
Cal.App.4th 1108, 1115-1116; Dills v. Redwoods Associates, Ltd. (1994)
28 Cal.App.4th 888, 890, fn. 1; Duarte v.
Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.) It is the appellant’s responsibility to
support claims of error with citation and authority; this court is not
obligated to perform that function on the appellant’s behalf. (Lewis
v. County of Sacramento (2001) 93 Cal.App.4th 107, 113.)

The
appellant must present each point separately in the opening brief under an
appropriate heading, showing the nature of the question to be presented and the
point to be made. (Cal. Rules of Court,
rule 8.204(a)(1)(B); Opdyk v. California
Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830-1831, fn. 4; see also People
v. Turner (1994) 8 Cal.4th 137, 214, fn. 19 [reviewing court may
disregard claims perfunctorily asserted without development and without clear
indication they are intended to be discrete contentions]; People v. Harper
(2000) 82 Cal.App.4th 1413, 1419, fn. 4 [argument forfeited if it is not set
forth under a separate argument heading and is raised in a perfunctory fashion
without any supporting analysis and authority].) This is not a mere technical requirement; it
is essential to the appellate process.
Appellants must “present their cause systematically and so arranged that
those upon whom the duty devolves of ascertaining the rule of law to apply may
be advised . . . of the exact question under consideration, instead
of being compelled to extricate it from the mass.” (Landa
v. Steinberg (1932) 126 Cal.App. 324, 325; accord, Opdyk v. California Horse Racing Bd., supra, 34 Cal.App.4th at
pp. 1830-1831, fn. 4.)

Appellants
may not simply incorporate by reference arguments made in papers filed in the
trial court rather than brief the arguments on appeal. (Garrick
Development Co. v. Hayward Unified School Dist. (1992) 3 Cal.App.4th 320,
334.) In addition, they may not attempt
to rectify their omissions and oversights for the first time in their reply
briefs because it deprives the respondent of an opportunity to respond. (Garcia
v. McCutchen (1997) 16 Cal.4th 469,
482, fn. 10; American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th
1446, 1453; Reichardt v. Hoffman (1997) 52 Cal.App.4th 754,
764-765.)

Lack
of legal counsel does not entitle the appellant to special treatment on
appeal. (Wantuch v. Davis (1995) 32 Cal.App.4th 786, 795; >Harding v. Collazo (1986) 177
Cal.App.3d 1044, 1055; Doran >v. Dreyer
(1956) 143 Cal.App.2d 289, 290.) A pro
se litigant is held to the same restrictive rules of procedure as an
attorney. (Nelson v. >Gaunt (1981) 125 Cal.App.3d 623,
638-639.) “A doctrine generally
requiring or permitting exceptional treatment of parties who represent
themselves would lead to a quagmire in the trial courts, and would be unfair to
the other parties to litigation.” (>Rappleyea v. Campbell (1994) 8 Cal.4th 975, 985.)

Here,
many of Zochlinski’s factual assertions are not supported by record citations,
or his citations are to mere assertions in his own pleadings. We will generally consider only those facts
and arguments supported by adequate citations to evidence in the record. (Provost
v. Regents of University of California (2011) 201 Cal.App.4th 1289,
1294.) Some of Zochlinski’s arguments
are not confined to the point raised in the heading. Others assume that he does not have the
responsibility to completely explain the factual and legal basis for his
position, and that we will ferret through the voluminous record to make sense
of his claims. “Although we address the
issues raised in the headings, we do not consider all of the loose and
disparate arguments that are not clearly set out in a heading and supported by
reasoned legal argument.” (>Ibid.)
Nor will we address arguments raised for the first time in his href="http://www.mcmillanlaw.com/">reply briefs.

DISCUSSION

I

Zochlinski
contends the trial court used the wrong standard of review in denying both writ
petitions.

In
both cases, Zochlinski filed petitions for writs of ordinary mandate, not
petitions for writs of administrative mandamus.
He has not demonstrated that he was entitled to an adjudicatory hearing
before a university tribunal in either case.
He seeks to compel either his reinstatement as a graduate student, or an
award of his Ph.D., on the ground that respondents’ actions were arbitrary and
capricious. This is a classic ordinary
mandate action, which involves review of an adjudicatory decision when an
agency is not required by law to hold an evidentiary hearing. (McGill
v. Regents of University of California (1996) 44 Cal.App.4th 1776, 1785; >Bunnett v. Regents of University of
California (1995) 35 Cal.App.4th 843, 848.)
Review is very deferential in light of the agency’s authority and
presumed expertise. The agency’s
findings must be upheld unless arbitrary, capricious, or entirely lacking
evidentiary support. (>McGill v. Regents of University of
California, supra, 44 Cal.App.4th at p. 1786; Stone v. Regents of University of California (1999) 77 Cal.App.4th
736, 745.)

“In
reviewing a trial court’s judgment on a petition for writ of ordinary mandate,
the appellate court applies the substantial evidence test to the trial court’s factual
findings, but exercises its independent judgment on legal issues, such as the
interpretation of statutes.
[Citation.]” (>Abbate v. County of Santa Clara (2001)
91 Cal.App.4th 1231, 1239; accord, Committee
for Responsible School Expansion v. Hermosa Beach City School Dist. (2006)
142 Cal.App.4th 1178, 1184.)
Nonetheless, an agency’s interpretation of its own regulations is
afforded significant deference by courts.
(See Yamaha Corp. of America v.
State Bd. of Equalization (1998) 19 Cal.4th 1, 14.) “[B]ecause the agency will often be
interpreting a statute within its administrative jurisdiction, it may possess
special familiarity with satellite legal and regulatory issues. It is this ‘expertise,’ expressed as an
interpretation . . . , that is the source of the presumptive value of
the agency’s views. (>Id. at p. 11; see also >Exxon Mobile Corp. v. County of Santa
Barbara (2001) 92 Cal.App.4th 1347, 1357.)
In light of the plenary authority of the Regents to
“ ‘ “operate, control, and administer” ’ ” the university (>Regents of University of California v. City
of Santa Monica (1978) 77 Cal.App.3d 130, 135), this rule of construction
applies with special force here.

The
record reflects that the trial court used the appropriate standard of review
for ordinary mandate, and that it exercised its independent judgment in
construing and applying the various university regulations, giving appropriate
deference to respondents’ interpretation of those regulations. It appears Zochlinski believes the trial
court applied the wrong standard because it “limited its authority to a narrow
definition of arbitrary & capricious, within a narrow time frame of
reference,” rather than examining the entire history of Zochlinski’s troubles
with the University of California “for unfairness, bad faith, contract
violations, and arbitrary & capricious actions” by respondents, “especially
in relation to due process and equal treatment.”

The
trial court appropriately limited its review to the only issue before it in
each case: (1) whether, under the
applicable regulations, Dean Gibeling arbitrarily and capriciously refused to
overturn Zochlinski’s disqualification and readmit him to the genetics graduate
department, and (2) whether UC Davis arbitrarily and capriciously refused to retroactively
grant Zochlinski a Ph.D. under the Three Paper Rule. To the extent Zochlinski is attempting to
revisit the propriety of his initial disqualification in 1993, his claim is
barred either by (1) the statute of limitations, or (2) the doctrine of res
judicata to the extent his complaints of discrimination, bias and a denial of
due process were raised, or could have been raised, in his prior lawsuits
against respondents.href="#_ftn4"
name="_ftnref4" title="">[4]

name="citeas((Cite_as:_2012_WL_488286,_*6_(Cal">name="SDU_6">II

In
his appeal in case No. C065103, Zochlinski contends the dean of the graduate
program lacked authority to reject the representative assembly’s decision to
reinstate Zochlinski to the graduate program, and the trial court erred in
upholding the dean’s decision.

A

As
best we can discern, Zochlinski believes the trial court confused readmission
to the graduate program with overturning his disqualification. He lists various rules, regulations and
bylaws that he believes support this position.
Zochlinski posits that while Dean Gibeling may have had authority
regarding whether to overturn Zochlinski’s disqualification, the rules dictate
that the academic senate had authority over readmission to the graduate program
and the representative assembly of the academic senate voted to readmit
him. Therefore, Dean Gibeling had no authority
to overrule or reject the representative assembly’s decision.

The
succinct answer is that Zochlinski did not merely seek, and the representative
assembly did not simply vote, to admit Zochlinski to the genetics graduate
group of UC Davis. At the time
Zochlinski was disqualified from the genetics graduate group, it was the policy
that a disqualification rendered a student ineligible to pursue a Ph.D. degree
of any kind at UC Davis. The graduate
council amended the policy in 2002 to permit a disqualified student to apply
for admission to a different program than the one from which the student was
disqualified. Thus, Zochlinski could not
be admitted to the genetics graduate group unless his disqualification was
reversed. Zochlinski and the representative
assembly sought to place Zochlinski in a position as if he had never been
disqualified, giving him full credit for all of the work he had performed
previously. In other words, they sought
to overturn his disqualification even though Senate Regulation 904, and
legislative ruling 6.06 from the UCRJ, gave the graduate dean sole discretion
over the disqualification of graduate students.
This they could not do and, as the representative assembly’s senate
chair ultimately recognized, the representative assembly’s vote was advisory
only.

Furthermore,
Dean Gibeling’s decision not to overturn Zochlinski’s disqualification was not
arbitrary or capricious. The special
student petitions committee found no basis to support Zochlinski’s petition. The sole basis for the representative
assembly’s contrary decision was that the members did not believe Zochlinski
“was given an appropriate opportunity to complete his work in light of the
difficulties that he faced at the time.”
But the matter of Zochlinski’s arrest for stalking and its effect on his
ability to finish his dissertation in a timely fashion had been considered
prior to his disqualification and again in subsequent appeals. Because Zochlinski accused Dean Gibeling of
bias in refusing to overturn the disqualification, the dean referred the matter
for further review to Barbara Horwitz, the interim provost and executive vice
chancellor. She reviewed the matter
carefully and issued a lengthy written decision in which she agreed with Dean
Gibeling and explained that even considering his personal difficulties,
Zochlinski had been given a more than reasonable opportunity to complete his
Ph.D. program but failed to do so.

Zochlinski
may disagree with Dean Gibeling’s exercise of discretion, but he has failed to
demonstrate that it was arbitrary or capricious.

B

Zochlinski’s
opening brief includes another argument heading that states: “Court Erred in Striking Second Amended Writ;
Quashing Subpoenas; Refusing to Consider the Disqualification and Subsequent History;
Striking Parts of Several Declarations; All These Actions Also Are Evidence of
Bias and the Problems With Rotating Judges.”


Zochlinski
presents a less than one-page argument covering these disparate claims of
error, and does not include a single citation to the record in support of his
factual assertions, or any reasoned legal argument supported by relevant case
law. As we explained in our discussion
of the applicable standard of review on appeal, Zochlinski’s contention(s) are
forfeited.href="#_ftn5" name="_ftnref5"
title="">[5]

III

In
his appeal in case No. C064600, Zochlinski contends UC Davis abused its
discretion in failing to retroactively award him a Ph.D. under what Zochlinski
calls the Three Paper Rule, and the trial court erred in its interpretation of
the applicable bylaws, rules and regulations.


A

Zochlinski
maintains “[t]he Court ha[d] a duty to examine the entire issue’s history from
1992 onward for unfairness, bad faith, contract violations, and arbitrary &
capricious actions; and not just the question of whether [the student petitions
subcommittee] considered, behind closed
doors, the evidence cherry-picked for them by [>the]
University.” (Original
emphasis.) He argues that even if the
trial court did not have such a duty, it nevertheless erred because there was
no “time limit” on the existence of his dissertation committee, and two of the
original committee members approved his use of three co-authored papers for his
dissertation many years after he was disqualified from the Ph.D. program.

Although
Zochlinski continues to assert his academic history in numerous and repetitive
lawsuits, this does not mean the trial court must repeatedly address
repetitious complaints. Regarding case
No. C064600, the sole issue before the trial court was whether UC Davis abused
its discretion in denying Zochlinski’s petition to obtain his Ph.D. as of
December 1992 under the Three Paper Rule.
On this issue, Zochlinski must show that he met the governing
requirements and there was no legitimate reason to reject his petition.

Zochlinski
says the trial court stated he “could have used the three published articles he
co-authored as all or part of his dissertation: as is stated in the 1991 TPR
rules.” According to Zochlinski, this
means UC Davis fraudulently breached its contractual obligation to him. But his quote is incomplete and taken out of
context. The trial court correctly found
that under the rule in effect in the early 1990’s (before Zochlinski’s disqualification
from the genetics Ph.D. program), he “could have used the three published
articles he co-authored as all or part of his dissertation, upon the approval
of (1) his dissertation committee and, (2) because he was not the sole
or first author of any of the published articles, the Genetics department or
graduate group.”href="#_ftn6"
name="_ftnref6" title="">[6]

There
is no evidence that prior to being disqualified from the Ph.D. program,
Zochlinski (1) obtained the approval or would have obtained the approval of the
genetics department or graduate group and his dissertation committee, (2) to
use co-authored papers, (3) on a subject unrelated to the agreed-upon
dissertation topic, (4) as a complete replacement for his dissertation, which
was supposed to be prepared in an NIH RO1 format. Rather, 15 years after he was disqualified
from the genetics graduate program --
and after one member of his dissertation committee had died, another was
employed by a different university and the third was on emeritus status -- he
obtained letters supporting his Three Paper Rule petition from the two
surviving members of his defunct dissertation committee.href="#_ftn7" name="_ftnref7" title="">[7]>

Zochlinski
no longer has a dissertation committee, which requires three members, two of
whom are members of the UC Davis genetics graduate group. (Operating Procedures Genetics Graduate
Group, part V.D.1.) But even if letters
from former members of a former committee could somehow be construed as a
retroactive approval by the dissertation committee for using co-authored
papers, Zochlinski also needed the approval of the genetics department or
graduate group. He does not have such
approval. It is simply too late for
Zochlinski to be granted “a Ph.D. degree in genetics as of December, 1992” on
the basis of the Three Paper Rule as he requested. The trial court did not abuse its discretion
in finding that UC Davis was not arbitrary or capricious in denying
Zochlinski’s Three Paper Rule petition.

B

Zochlinski’s
opening brief also includes an argument heading stating: “The Decision by Robert Powell Denying
Reconsideration by [the student petitions subcommittee] and Appeal to [the
representative assembly of the academic senate] was Unreasonable, Arbitrary and
Capricious.” The sum total of his
argument is as follows: “Powell denied a
hearing simply because he does not have to grant one, under the amendments made
in the wake of Zochlinski’s successful 2/28/05 due process hearing. This is an arbitrary imposition by Powell,
and retaliatory. Zochlinski, having been
a student in the 1980’s is entitled to a fair evaluation by transparent
procedures -- a public hearing in [the representative assembly].”

We
presume this is a reference to the fact that Powell, the chair of the Davis
academic senate, rejected Zochlinski’s request to present the Three Paper Rule
issue to the representative assembly of the academic senate after the student
petitions subcommittee rejected his petition.
The matter had been referred to the subcommittee pursuant to legislative
rulings 7.07 and 11.05, which state that appeals of committee decisions on
student matters “are generally referred (at the discretion of the Secretary) to
the Student Petitions Subcommittee of the Executive Council,” and that “no
student petition need be forwarded to the Representative Assembly as a matter
of right.”

Zochlinski
questioned the use of these legislative rulings to refer the matter to the
subcommittee rather than the representative assembly of the academic senate,
maintaining he was “grandfathered” in because his issues predated the rule
changes. But Powell advised Zochlinski
that because legislative rulings 7.07 and 11.05 were procedural rules, they
were effective immediately upon issuance and applied to Zochlinski’s
petition.

Zochlinski
alleges that Powell’s rationale was incorrect, arbitrary or capricious, but he
fails to present a cogent argument, supported by analysis and authority,
demonstrating his contention. His
allegations are not sufficient to demonstrate error under the established rules
of appellate procedure. Under the
circumstances, Zochlinski’s claim is forfeited.
And, in any event, Powell’s rationale was correct. (See, e.g., In re Vaccine Cases (2005) 134 Cal.App.4th 438, 455-456.)href="#_ftn8" name="_ftnref8" title="">[8]

DISPOSITION

The
judgments (orders denying the petitions) are affirmed.









MAURO , J.





We
concur:







ROBIE ,
Acting P. J.







HOCH ,
J.