Filed 11/27/13 Rosenberg v. Commission on Professional Competence CA4/1

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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



EDWARD ROSENBERG,                                                   D062238

         Plaintiff and Appellant,

         v.                                                         (Super. Ct. No. 37-2011-00088743-
                                                                                    CU-WM-CTL)
COMMISSION ON PROFESSIONAL
COMPETENCE,

         Defendant;

SAN DIEGO UNIFIED SCHOOL
DISTRICT,

         Real Party in Interest and Respondent.


         APPEAL from an order of the Superior Court of San Diego County, Jeffrey B.

Barton, Judge. Affirmed.

         Lawrence A. Mudgett III for Plaintiff and Appellant.

         No appearance for Defendant.

         Lawrence M. Schoenke and Andra M. Donovan for Real Party in Interest and

Respondent.
       Edward Rosenberg, a tenured teacher with the San Diego Unified School District

(District), was placed on administrative leave following allegations of sexually

inappropriate conduct involving a 16-year-old student. Following an administrative

hearing before the District's Commission on Professional Competence (Commission),

Rosenberg was dismissed. Rosenberg sought relief in the superior court and appeals that

court's order denying his petition for writ of administrative mandate to compel the

District to set aside the Commission's dismissal. We affirm the order.

                  FACTUAL AND PROCEDURAL BACKGROUND

       Rosenberg began teaching for the District in 2002 when he was assigned to Morse

High School (Morse). Until January 2009, Rosenberg had no history of discipline and

was a respected member of the Morse faculty. During the 2008-2009 school year, he was

employed full time as an English teacher. On January 22, 2009, a 16-year-old student in

Rosenberg's first period American literature class, M.C., told another teacher that the

previous day Rosenberg had touched her inappropriately. The teacher, Katherine

Banuelos, reported the incident to the school's administration and child protective

services.

       That afternoon, the school's campus police officer, Jarvis Gresham, interviewed

M.C. and asked her to write down her account of what happened. M.C. told Gresham

that during her first period class, she met with Rosenberg at his desk to discuss her grade.

M.C. claimed Rosenberg asked her if she wanted to do something illegal with him to

improve her failing grade and told her she would not have to do school work if she

"entertained" him. When M.C. asked Rosenberg what he meant, Rosenberg told M.C.

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she was a smart girl and could figure it out. M.C. also told Gresham that Rosenberg

rubbed her leg during this meeting.

      M.C. told Gresham that during her next class, taught by Banuelos, she told her

close friend Beth S. what happened in Rosenberg's class. Beth and M.C. decided M.C.

should go back to Rosenberg's classroom, which was next door to Banuelo's classroom,

and tell him that she did not want to do anything sexual with him. Rosenberg's second

period was his planning period. Beth told M.C. that if M.C. did not come back to class

right away, she would come get her. M.C. asked Banuelos for permission to leave the

class to go Rosenberg's room to get extra credit work and Banuelos allowed her to leave.

      When M.C. arrived, Rosenberg was alone in his classroom. According to M.C.,

the blinds were down and the door was locked. She knocked on the door and Rosenberg

let her in, then shut the door behind her. M.C. claimed that when she walked into the

room, she told Rosenberg she "wasn't going to do anything nasty with him," but

Rosenberg said it was too late to "do work" and he preferred she let him touch her. She

said Rosenberg then rubbed her arm, put his arm on her waist, tried to put his hand down

the front of her pants, grabbed her breast and buttocks, and breathed in her ear and made

sexual noises. According to M.C., Rosenberg stopped touching her when he said, "I feel

you are uncomfortable." M.C. then left the classroom and went back to Banuelos's class.

      Gresham reported M.C.'s account of the events to his supervisor. The next day

Detective Doris Devowe of the San Diego Police Department came to Morse to conduct

further investigation. She interviewed Rosenberg, who told Devowe M.C. was a student

in his first period class who was failing. Rosenberg said he had recently met with M.C.

                                            3
to discuss what steps she could take to raise her grade. When Devowe told Rosenberg

M.C. had alleged he engaged in inappropriate behavior, Rosenberg denied doing anything

inappropriate and said he had no idea why M.C. would make allegations against him.

Rosenberg told Devowe that when he met with M.C. during first period, she told him she

did not think she could do the extra credit assignment Rosenberg had given to the class.

Rosenberg told her she could come back during second period to discuss other ways she

could raise her grade. Rosenberg said that when M.C. came back, he remembered going

to the door and propping it open and also remembered the blinds were open.1 He said

during the meeting they discussed only M.C.'s grades and ways she could improve to

pass his class. While he could not remember specifics of the work they discussed, he was

certain it was the only topic of conversation.

       Devowe also interviewed Beth, as well as another student, Patrick M., who also

left Banuelos's classroom while M.C. was in Rosenberg's class. Beth told Devowe that a

few minutes after M.C. left Banuelos's class, she left to check on M.C. under the pretense

of getting a drink of water. Around the same time, Banuelos let Patrick leave to use the

restroom. Beth told Devowe that the door to Rosenberg's classroom was closed and the

blinds were partially closed but open enough that she could see in between the slats.

When she looked in, Beth saw M.C. and Rosenberg standing very close to each other—

"way too close for a teacher to be standing." She said she could not see what his hands




1     At the hearing before the Commission, Rosenberg testified he was not sure the
door was open.
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were doing, but saw he was leaning into her. She watched for about a minute and then

returned to class.

       Patrick told Officer Devowe that when he was walking back from the restroom he

saw Beth peering into the window of Rosenberg's classroom. He had never had

Rosenberg as a teacher and was friends with M.C. and Beth because they were in

Banuelos's class with him. He said he was not close with either girl, although they

sometimes text messaged each other during class. When Patrick saw Beth looking into

the window, he became curious and peered in. Beth told Patrick to go away, which made

him more interested in what was going on. Patrick told Devowe he could see into the

classroom and witnessed Rosenberg standing very close to M.C., who was fiddling with a

book on a nearby table. Patrick described their positions as "hugging type close" and

was certain that one of Rosenberg's hands was on M.C.'s buttocks.

       Beth and Patrick both returned to Banuelos's classroom. M.C. returned shortly

thereafter. When M.C. returned, Patrick sent her a text message asking what had

happened. M.C. responded that Rosenberg wanted her to have sex with him and touched

her buttocks and put his hands under her shirt in return for a better grade. Banuelos

noticed the commotion when Patrick, Beth and M.C. returned to class and overheard

Patrick say, "[Y]ou only got a C for that?" At the end of the class another student

approached Banuelos and said that M.C. had something she should tell Banuelos.

       The following day, Banuelos pulled M.C. out of class and asked her what

happened. M.C. initially did not respond, but when Banuelos told M.C. she could be

trusted, M.C. broke down in tears and told Banuelos that Rosenberg had touched her.

                                             5
Banuelos asked M.C. to come back to her class at lunchtime. During this meeting, M.C.

told Banuelos that Rosenberg had put his hand down her bra and tried to put his hand

down her pants. M.C. also told Banuelos that Rosenberg said M.C. could raise her grade

by making videos or dancing for him. After the meeting, Banuelos finished teaching her

afternoon classes. She then reported what M.C. had told her to school officials.

       Following Rosenberg's interview with Devowe, he was escorted from campus and

placed on paid administrative leave. Rosenberg's classroom was searched by Morse

principal Todd Irving. Five Stuff2 magazines and several VHS videotapes were seized.

One of the videotapes showed a student reading a sexually explicit poem in Rosenberg's

class during the 2002-2003 school year. Thereafter, Rosenberg was placed on

administrative leave and later arrested. He faced two criminal trials and both resulted in

hung juries. The District moved to terminate Rosenberg under Education Code section

449323 on grounds of immoral conduct (§ 44932, subd. (a)(1)), evident unfitness for

service (§ 44932, subd. (a)(5)), and persistent violation of the rules and regulations of the

District (§ 44932, subd. (a)(7)). The District's charges primarily concerned M.C.'s

accusations, but also included Rosenberg's possession of the seized magazines and

videotape as sanctionable conduct.




2      Stuff is a magazine targeted towards young males. The magazines did not contain
any nudity, but did contain photographs of young women in bikinis and underwear, as
well as humor, trivia, and reviews of cars and tech products.

3      Statutory references are to the Education Code unless otherwise stated.
                                              6
       The District served Rosenberg with a detailed dismissal accusation and Rosenberg

served the District with a notice of defense invoking his right to an administrative

hearing. The hearing took place on January 5 and 6, 2011, before a Commission panel

consisting of an administrative law judge appointed by the California Office of

Administrative Hearings and two credentialed teachers, one selected by Rosenberg and

one selected by the District. The first hearing day consisted of an opening statement by

counsel for the District and the testimony of the District's witnesses: M.C., Beth, Patrick,

Gresham and Devowe. The second day consisted of an opening statement by

Rosenberg's counsel, closing arguments, and testimony by Rosenberg's witnesses: the

principal at M.C.'s former high school, who testified about M.C.'s prior disciplinary and

behavioral problems; two teachers who worked with Rosenberg at Morse and praised his

work; and Rosenberg, who steadfastly denied all of the accusations against him relating

to M.C.4

       On February 4, 2011, the Commission issued its decision dismissing Rosenberg

from permanent employment with the District. Based on what it deemed a

preponderance of the evidence, the Commission found Rosenberg touched M.C.'s

buttocks when they were alone in Rosenberg's classroom, that this conduct was immoral

and that Rosenberg was unfit to serve as a high school teacher. In its decision, the



4      Rosenberg admitted having the Stuff magazines in his classroom and that it was
inappropriate to keep them there, but maintained this conduct did not warrant dismissal.
The charges related to possession of the videotape were dismissed because the video was
taken more than four years before the notice of intent to dismiss was filed and because
the "content was irrelevant."
                                             7
Commission detailed the factual findings supporting its conclusion. It discredited much

of M.C.'s testimony and concluded a preponderance of the evidence did not establish

Rosenberg rubbed M.C.'s leg during their first period conference or that Rosenberg made

inappropriate comments to M.C. during that meeting.

       With respect to what occurred during Rosenberg's planning period, the

Commission found Beth's testimony "was not particularly compelling." It noted she was

unable to describe what she saw with specificity and her testimony demonstrated bias,

finding that M.C.'s statements to Beth before the incident about what had occurred in first

period "could have influenced [her] perception of what actually occurred inside the

classroom." The Commission did find Patrick's testimony credible, stating he did not

have a significant relationship with M.C. or Beth and did not know Rosenberg. The

Commission found "[t]he degree of specificity [Patrick] provided concerning his

observation was entirely appropriate to the circumstances" and he "did not exaggerate

what he saw by claiming that he was able to see more than was actually visible through

the partially closed binds." Further, the Commission found Patrick "was clearly shocked

by what he observed" and that his spontaneous comment, "you only got a C for that,"

overheard by Banuelos, supported his testimony.

       The Commission found Rosenberg engaged in "sexually provocative and

exploitive conduct" that was offensive to M.C., Beth and Patrick and that betrayed the

community's trust in teachers. Applying the factors set forth in Morrison v. State Board

of Education (1969) 1 Cal.3d 214, 224-225, the Commission concluded Rosenberg was



                                             8
unfit to teach based on this immoral conduct. The Commission found the District did not

establish Rosenberg persistently violated or refused to obey school rules.

       Rosenberg filed a petition for writ of mandate in the trial court under Code of

Civil Procedure section 1094.5 seeking an order compelling the District to set aside the

Commission's dismissal on the grounds the decision was not supported by substantial

evidence. The District opposed the petition and also objected to certain evidence

Rosenberg inserted into his briefing and lodged with the trial court that it contended was

not part of the administrative record. After conducting an independent review of the

administrative record, the trial court denied Rosenberg's petition. The court also

sustained the District's evidentiary objections, finding the evidence was not part of the

administrative record and Rosenberg failed to show the evidence was not available at the

time of the administrative hearing.

                                      DISCUSSION

                               I. STANDARD OF REVIEW

       "Code of Civil Procedure section 1094.5 provides a trial court reviewing the

decision of an administrative agency exercises its independent judgment in reviewing the

evidence." (San Diego Unified School Dist. v. Commission on Professional Competence

(2011) 194 Cal.App.4th 1454, 1461.) An abuse of discretion by the administrative

agency "is established if the court determines that the findings are not supported by the

weight of the evidence." (Code Civ. Proc., § 1094.5, subd. (c).) The trial court is "not

bound by the findings of the Commission in exercising its independent judgment review

[and is] free to make its own determination of the credibility of witnesses in the process."

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(Pittsburg Unified School Dist. v. Commission On Professional Competence (1983) 146

Cal.App.3d 964, 977.)

       After the trial court "'makes an independent judgment upon the record of an

administrative proceeding, [the] scope of review on appeal is limited.' [Citation.] We

must sustain the trial court's findings if they are supported by substantial evidence.

[Citation.] In reviewing the evidence, we resolve all conflicts in favor of the party

prevailing at the trial court level and must give that party the benefit of every reasonable

inference in support of the judgment. '"'When more than one inference can be reasonably

deduced from the facts, the appellate court cannot substitute its deductions for those of

the superior court.'"'" (San Diego Unified School Dist. v. Commission on Professional

Competence, supra, 194 Cal.App.4th at p. 1461.) "We do not reweigh the evidence. Our

inquiry 'begins and ends with the determination as to whether there is substantial

evidence, contradicted or uncontradicted, which will support the finding of fact.'" (Id. at

pp. 1461-1462.)

                                       II. ANALYSIS

                                             A

       Rosenberg first argues the trial court failed to determine whether his employment

by the District constituted a fundamental vested right, and, without supporting authority,

contends this failure mandates reversal. We disagree. There is no requirement the trial

court conduct a fundamental vested rights analysis to determine the applicable legal

standard before its review of the Commission's decision. Under section 44945, the trial

court is charged with conducting a de novo review of the evidence and independently

                                             10
judging whether the Commission's findings were supported by the weight of that

evidence. (See § 44945 ["The decision of the [Commission] may, on petition of either

the governing board or the employee, be reviewed by a court of competent jurisdiction . .

. . The court, on review, shall exercise its independent judgment on the evidence."];

Governing Board v. Haar (1994) 28 Cal.App.4th 369, 377 ["[I]ndependent review is

legislatively mandated."].) As Rosenberg concedes, the trial court correctly "determined

that its independent judgment should apply."

       Rosenberg also argues the court espoused an independent review standard, but

actually proceeded under a substantial evidence standard. In support of this claim, he

cites the trial court's quotation in Flaherty v. Board of Retirement of Los Angeles County

Emp. Retirement Ass'n (1961) 198 Cal.App.2d 397, 408: "'The rule in California is that

upon review of the decision of a local administrative body, the reviewing court is

concerned only with the presence or absence of substantial evidence.'" Rosenberg,

however, has taken this statement out of context and excluded the portion of the

quotation most pertinent to the trial court's ruling. The sentence continues: " . . . in the

agency record which will support the agency's determination. The reviewing court may

not consider evidence which was not presented to the local board . . . ." The paragraph in

which the language is quoted concerns Rosenberg's improper reliance on evidence

outside the administrative record; it does not concern the trial court's review of that

record.

       The court's order reflects that it understood its charge to "conduct an independent

review of the evidence," including weighing the credibility of the witnesses. The court's

                                              11
five-page decision contains a detailed analysis of the testimony of the various witnesses

and their credibility to support its ultimate determination that the Commission did not

abuse its discretion in finding cause to terminate Rosenberg. There was no error in the

trial court's application of the standard of review.

                                              B

       Rosenberg next argues the trial court abused its discretion by improperly

excluding admissible and relevant evidence. Specifically, he points to: (1) "two criminal

trial jury verdicts whereby 22 of 24 jurors found ROSENBERG not guilty of touching the

alleged victim"; (2) M.C.'s scholastic behavioral and academic reports; (3) photographs

and video of Rosenberg's classroom; (4) portions of the criminal trial transcript; (5) and

declarations from Rosenberg's former students praising him. Rosenberg contends this

evidence was before the Commission and should have been considered by the trial court

in its independent review of the administrative proceedings.

       Rosenberg has not provided a sufficient record for this court to evaluate his

contentions. A fundamental rule is that "it is the burden of the party challenging the

order or judgment on appeal to provide an adequate record to assess error." (In re

Marriage of Lusby (1998) 64 Cal.App.4th 459, 470.) Because the "'order of a lower court

is presumed to be correct on appeal, and all intendments and presumptions are indulged

in favor of its correctness'" (ibid.), where the "parties fail to [provide an adequate record],

their claims must be resolved against them." (Ibid.)

       Here, the trial court's order sustained the "District's objections to the second trial

evidence and civil case, as well as exhibits 16-19." Rosenberg, however, failed to

                                              12
provide this court with his amended petition or his notice of lodgment containing the

evidence he now claims the trial court improperly excluded. Rosenberg also did not

provide the District's statement of objections he argues was improperly sustained.

Without the evidence or briefing in the trial court, we cannot determine what the order

excluded and whether that exclusion was proper. Therefore, the court properly sustained

the District's motion to strike.

                                              C

       Finally, Rosenberg argues substantial evidence did not support the trial court's

affirmance of the Commission's finding that Rosenberg's conduct was immoral and

warranted dismissal. Specifically, Rosenberg contends the trial court erred in relying on

Patrick's testimony because it contained inconsistencies and he was influenced by M.C.

and Beth. We reject these arguments.

       As discussed, once the trial court "'makes an independent judgment upon the

record of an administrative proceeding, [the] scope of review on appeal is limited.'" (San

Diego Unified School Dist. v. Commission on Professional Competence, supra, 194

Cal.App.4th at p. 1461.) "We must sustain the trial court's findings if they are supported

by substantial evidence" (ibid.) and in our review of the evidence we must "resolve all

conflicts in favor of the party prevailing at the trial court level." (Ibid.) "We do not

reweigh the evidence. Our inquiry 'begins and ends with the determination as to whether

there is substantial evidence, contradicted or uncontradicted, which will support the

finding of fact.'" (Id. at pp. 1461-1462.)



                                             13
       The trial court found the Commission properly discredited M.C.'s and Beth's

accounts of the event, but that Patrick's account was credible. Rosenberg contends it was

error for the court to credit Patrick's testimony because of inconsistencies between his

statement to Devowe, his testimony in Rosenberg's criminal trials5 and his testimony

before the commission. Specifically, Rosenberg points to Patrick's statement in the

criminal trial that M.C.'s back was toward the classroom door, and Patrick's inconsistent

statements at different times at the administrative hearing that M.C.'s back was toward

the door and that her back was toward Patrick, not the door.

       This minor inconsistency in Patrick's testimony does not support reversal. It did

not make the trial court's finding against him implausible or unreasonable. (Board of

Education v. Jack M. (1977) 19 Cal.3d 691, 699 ["'Where two or more inferences

reasonably can be drawn from the facts, an appellate court is without power to substitute

its deductions for those of the trial court.'"].) The trial court found that although there

were slight changes in Patrick's testimony over time, he "was consistent in what he saw

and what he related under oath." The significant information from Patrick's testimony—

"that [Patrick] saw a hand on M.C.'s behind and that this was Mr. Rosenberg's hand"—

was consistent over time and was sufficient evidence to support the trial court's order

upholding the Commission's decision.




5       Rosenberg lodged in this court testimony from one of the criminal trials, which
included Patrick's testimony. The District did not raise any objection to Rosenberg
lodging the transcript and it is unclear from the record whether this testimony was before
the trial court or was part of the evidence it excluded.
                                              14
       With respect to Patrick's autonomy, Rosenberg argues Patrick was entirely

dependent on Beth and M.C. because Patrick testified he could not see M.C.'s face when

he looked into Rosenberg's classroom. Rosenberg, however, does not dispute he was

alone in his classroom with M.C. at the time Patrick and Beth peered into the window.

Rosenberg also contends Patrick was "influenced by his girlfriends when they gossiped

and texted about the incident in their next class together." The record contradicts this

claim. In his initial interview with Devowe, Patrick stated he was friends with M.C., "but

not a close friend." Patrick explained "[t]hey sometimes text message during their class

together but she is not in his normal group of friends and they have never hung out

together outside their classroom." This evidence does not support reversal of the trial

court's finding that Patrick's testimony was credible. In sum, substantial evidence

supported the trial court's finding that Rosenberg engaged in "sexually provocative and

exploitive conduct."

                                      DISPOSITION

       The order is affirmed. Each party to bear its own costs.


                                                                                 NARES, J.

WE CONCUR:


McCONNELL, P. J.


O'ROURKE, J.




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