Modification: Akella v. The Regents of the University of California

RAMAKRISHNA AKELLA,

Petitioner and Respondent,

v.

THE REGENTS OF THE UNIVERSITY OF CALIFORNIA,

Respondent and Appellant.

No. H045886

(Santa Cruz County Super. Ct. No. 17CV03234)

California Courts of Appeal

Sixth Appellate District

Filed March 26, 2021

ORDER MODIFYING OPINION AND DENYING REHEARING

[NO CHANGE IN JUDGMENT]

THE COURT:

It is ordered that the opinion filed herein on February 16, 2021, and certified for publication on March 11, 2021, be modified as follows:

On page 13, after the last sentence of the first full paragraph which ends with the words "review the factual basis behind the agency's order or decision for 'substantial evidence in . . . light of the whole record.' (Id., subd. (c).)," insert the following footnote:

⁶ Akella asserts, for the first time in a petition for rehearing, that the university's disciplinary decision implicates a fundamental right concerning employment and, as such, requires independent review of the factual basis for the agency's decision under section 1094.5, subdivision (c). Akella is correct that the standard of review in the superior court and on appeal "depends on the nature of the right affected by the administrative decision." (MHC Operating Limited Partnership v. City of San Jose (2003) 106 Cal.App.4th 204, 217, citing § 1094.5, subd. (c).) Indeed, " '[i]f the decision of an administrative agency will substantially affect a "fundamental vested right," then the trial court must not only examine the administrative record for errors of law, but must also exercise its independent judgment upon the evidence. [Citation.]' " (Ibid.) But this case was never litigated as implicating a fundamental right. To the contrary, Akella's briefing---both as petitioner in the superior court and as respondent on appeal---expressly declined to make that assertion, stating instead that the case does not involve a fundamental vested right. In his respondent's brief on appeal, for example, Akella quoted Schafer v. City of Los Angeles (2015) 237 Cal.App.4th 1250, for the relevant standard of review " 'in a case not involving a fundamental vested right . . . .' " (Id. at p. 1261 [noting that in an administrative mandamus proceeding not involving a fundamental vested right, the reviewing court "reviews the administrative record to determine whether substantial evidence in the record supports the agency's factual findings"].) Akella also repeated his acknowledgment in his briefing to the superior court that there was "no 'fundamental vested right' " at issue.

Having failed to assert at the outset that the university's disciplinary proceedings involved a "fundamental vested right in his employment" (Wences v. City of Los Angeles (2009) 177 Cal.App.4th 305, 318), Akella has forfeited the argument on petition for rehearing. (See, e.g., Alameda County Management Employees Assn. v. Superior Court (2011) 195 Cal.App.4th 325, 338, fn. 10; accord Curtis Engineering Corp. v. Superior Court (2017) 16 Cal.App.5th 542, 551 ["Generally, a party may not assert new arguments and authorities for the first time in a petition for rehearing"].)

All footnotes commencing with footnote 6 shall be renumbered accordingly.

The petition for rehearing filed on behalf of respondent Ramakrishna Akella is denied.

There is no change in the judgment.

Bamattre-Manoukian, J.

GREENWOOD, P.J.

GROVER, J.