The opinion
Filed 11/3/25 Gensler v. Board of Trustees etc. CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
HOWARD GENSLER,
Plaintiff and Appellant, G064067
v. (Super. Ct. No. 30-2021-
01177691)
BOARD OF TRUSTEES OF THE
SOUTH ORANGE COUNTY OPINION
COMMUNITY COLLEGE
DISTRICT et al.,
Defendants and Respondents.
Appeal from a judgment of the Superior Court of Orange County,
Kimberly A. Knill, Judge. Affirmed.
Howard Gensler, in pro. per., for Plaintiff and Appellant.
Walsh & Associates, Dennis J. Walsh and Wendy K. Marcus for
Defendants and Respondents.
Howard Gensler appeals from a judgment entered after the trial
court denied his petition for writ of mandate. In 2019, the Board of Trustees
of the South Orange County Community College District (Board) and the
South Orange County Community College District (District) (collectively,
respondents) terminated Gensler’s employment as a tenured faculty member
at Saddleback College. On appeal, Gensler challenges the termination
decision, arguing: (1) respondents acted in excess of their jurisdiction when
the District dismissed Gensler without conducting a performance evaluation;
(2) the administrative law judge (ALJ) erred by finding Gensler was evidently
unfit for service under Education Code section 87732, subdivision (d) (all
undesignated statutory references are to this code), and the court did not
conduct the required judicial review; (3) the ALJ erred by finding Gensler
“‘persistently violated, or refused to obey . . . reasonable regulations’” under
section 87732, subdivision (f), and the court did not perform the required
judicial review; (4) the District and the ALJ contravened Gensler’s First
Amendment rights and academic freedom, and the court failed to conduct the
required judicial review; and (5) respondents’ actions and the administrative
proceedings were biased and unfair.1
We affirm. We conclude respondents substantially complied with
the evaluation requirement in section 87671 and in the District’s master
agreement with the faculty association. We decline to address any arguments
the ALJ erred because, on appeal, we review only the trial court’s findings.
(Shenouda v. Veterinary Medical Bd. (2018) 27 Cal.App.5th 500, 512.)
1 For ease of reading, we have omitted some formatting (such as
boldface, underlining, or capitalization) from quoted material found in the
record and briefs.
2
We determine the court performed the proper judicial review of the ALJ’s
findings under section 87732, subdivisions (d) and (f). We also find Gensler
fails to establish a First Amendment violation and to show how respondents
or administrative proceedings were biased and unfair.
FACTUAL AND PROCEDURAL BACKGROUND
I.
EMPLOYMENT TERMINATION AND ADMINISTRATIVE PROCEEDINGS
Gensler started working for the District as a regular academic
employee in January 2003, and was a faculty member at Saddleback College
during the relevant time periods. He has undergraduate degrees from the
University of California, Irvine, in five disciplines; a master of public policy
and a juris doctor from the University of California, Berkeley; and a master
of arts and doctor of philosophy in economics from the University of
California, Irvine. He has been an academic for nearly his entire career. He
has a California community college teaching credential in various subject
matters, including economics, law, social science, public services and
administration, and government.
A. Employment Termination
In December 2018, the District put Gensler on administrative
leave and notified him of its intent to terminate his employment. In January
2019, Gensler attended a Skelly hearing, conducted by Dr. Elliot Stern, who
had become president of Saddleback College only two days before.2 After
considering Gensler’s evidence, Stern affirmed the termination decision.
On January 31, 2019, Stern signed the statement of charges and
recommendation for termination. On the same day, Dr. Kathleen Burke, the
2 Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194.
3
District’s chancellor, signed a concurrence. In February 2019, the District
sent these documents, along with Gensler’s latest performance evaluation
covering the period between October 17, 2012, and November 2, 2015, to the
Board.
In February 2019, the Board voted to give notice to Gensler the
District would terminate his employment 30 days from the service of the
notice unless he asked for a hearing. After receiving the notice, Gensler
requested a hearing.
In June 2019, Stern filed a 25-page accusation with 42 exhibits in
support, alleging two grounds for dismissal: (1) “[e]vident unfitness for
service” (§ 87732, subd. (d)), and (2) “[p]ersistent violation of, or refusal to
obey, the school laws of the state or reasonable regulations prescribed for the
government of the community colleges by the board of governors or by the
governing board of the community college district employing him or her”
(§ 87732, subd. (f)). The accusation alleges multiple instances of misconduct.
The Board certified the matter to the Office of Administrative Hearings for
the appointment of an ALJ under section 87678.
B. Administrative Hearing and Decision
In February 2020, the ALJ held a 10-day hearing on the matter.
The ALJ received testimonial and documentary evidence and the parties’
arguments.
In October 2020, the ALJ issued a 137-page decision, affirming
the District’s decision to terminate Gensler’s employment. The ALJ found,
“Cause exists to dismiss [Gensler] pursuant to [s]ection 87732,
subdivisions (d) and (f). The [D]istrict’s decision to dismiss [Gensler] from
employment is reasonable and supported by a preponderance of the
evidence.”
4
1. Section 87732, Subdivision (f)
The ALJ first discussed how Gensler persistently violated or
refused to obey policies and regulations under section 87732, subdivision (f).
The relevant policy and regulation were: board policy 4000.5 (“‘Harassment
and Discrimination Prevention and Complaints’”) and administrative
regulation 4000.5 (“‘Harassment and Discrimination Prevention and
Complaints Procedures’”). The ALJ explained board policy 4000.5 “reflects
the [D]istrict’s commitment ‘to providing an academic and work environment
that respects the dignity of individuals and groups.’ The policy prohibits
harassment and discrimination based on any legally protected characteristic,
including ‘race, color, ancestry, national origin, physical disability, mental
disability, medical condition, marital status, sex, gender, or the perception
that a person has one or more of the foregoing characteristics.’ The policy
applies to any aspect of the academic environment, including classroom
conditions, grades, and participation in any community college activity. The
policy requires the [c]hancellor to adopt regulations pursuant to the policy.”
The ALJ explained administrative regulation 4000.5 “provides
specific definitions and complaint procedures for harassment and
discrimination. Like the board policy, the regulations prohibit harassment
based on a protected characteristic. It provides additional guidance on
gender-based harassment and states it ‘does not necessarily involve conduct
that is sexual. Any hostile or offensive conduct based on gender can
constitute prohibited harassment.’ [Citation.] Forms of prohibited
harassment for all categories include, but are not limited to the following:
“1. Verbal: [¶] Inappropriate or offensive remarks, slurs, jokes or
innuendoes based on a person’s race, gender, sexual orientation, or other
protected status. This may include, but is not limited to, inappropriate
5
comments regarding an individual’s body, physical appearance, attire, sexual
prowess, marital status, or sexual orientation; unwelcome flirting or
propositions; demands for sexual favors; verbal abuse, threats or
intimidation; or sexist, patronizing or ridiculing statements that convey
derogatory attitudes based on gender, race, nationality, sexual orientation or
other protected status. [¶] . . . [¶]
“4. Environmental: [¶] A hostile academic or work environment
may exist where it is permeated by sexual innuendo; insults or abusive
comments directed at an individual or group based on gender, race,
nationality, sexual orientation or other protected status; or gratuitous
comments regarding gender, race, sexual orientation, or other protected
statuses that are not relevant to the subject matter of the class or activities
on the job. A hostile environment can arise from: [¶] an unwarranted focus on
sexual topics or sexually suggestive statements in the classroom or work
environment; [¶] an unwarranted focus on, or stereotyping of particular
racial or ethnic groups, sexual orientations, genders, or other protected
statuses[.] An environment may be hostile toward anyone who merely
witnesses unlawful harassment in their immediate surroundings, although
the conduct is directed at others. The determination of whether an
environment is hostile is based on the totality of the circumstances, including
such factors as the frequency of the conduct, the severity of the conduct,
whether the conduct is humiliating or physically threatening, and whether
the conduct unreasonably interferes with an individual’s learning or work
activities.”
Although the ALJ rejected certain allegations by the District, the
ALJ found Gensler made the following comments during a Fall 2017
American Government class: “[Gensler] said that Iranian women dressed like
6
‘hookers’; made comments about Middle Easterners hating Persians; and
during a lecture on the Iran-Iraq war, said the United States sold weapons to
Iraq because Iranians were ‘jerks’ and called Iranians evil.” The ALJ
determined: “[T]he [D]istrict established that the story about Iranian women
dressing like prostitutes violated [board policy] 4000.5 and [administrative
regulation] 4000.5. The reference to ‘hookers’ constituted ‘inappropriate or
offensive’ remarks based on gender and national origin.”
The ALJ also found Gensler made the following comments during
a Spring 2018 American Government class: “[Gensler] told a story about a
former student in which he described her scant attire and breast size;
repeatedly used the word ‘tard’ to describe himself and students; referred to
wives as ‘bitches’; wore a jacket containing Playboy insignias to class; and
made a crude reference to Ariana Huffington performing oral sex in order to
achieve political recognition.” The ALJ concluded: “These comments
cumulatively constituted hostile or offensive conduct in violation of [board
policy] 4000.5 and [administrative regulation] 4000.5, as inappropriate or
offensive remarks, jokes or innuendoes based on a person’s gender or other
protected status. They also constituted inappropriate comments regarding an
individual’s body, physical appearance, attire, and/or[] were patronizing or
ridiculing statements that conveyed derogatory attitudes based on a
protected status. The gratuitous comments created a hostile academic
environment that interfered with the learning or work activities of several
students.”
After finding the violation of board policy 4000.5 and
administrative regulation 4000.5 evidenced “unfitness to teach” based on the
7
factors in Morrison v. State Board of Education (1969) 1 Cal.3d 214, 229,3 the
ALJ considered whether Gensler’s refusal to follow regulations was
persistent. The ALJ concluded: “Although the evidence established that
[Gensler] violated the harassment/discrimination rules in the course of a
single school year, the violations were permeated with an attitude of
continued insubordination or willful disobedience to the [D]istrict’s directives.
As such, the continuous use of inappropriate language that violated [D]istrict
harassment policies was persistent.”
2. Section 87732, Subdivision (d)
The ALJ also concluded Gensler was evidently unfit for service
under section 87732, subdivision (d). The ALJ applied the Morrison factors
and found Gensler was unfit to teach. The ALJ then considered whether the
unfitness was “‘evident.’” The ALJ explained: “The single most important
consideration is that the [D]istrict provided [Gensler] with multiple
opportunities to remediate his behavior. [Gensler] obstinately refused,
believing that all the complaints against him were meritless. [Gensler] even
ignored the simple directive to refrain from using profanity with students
3 “In determining whether the teacher’s conduct thus indicates
unfitness to teach the board may consider such matters as the likelihood that
the conduct may have adversely affected students or fellow teachers, the
degree of such adversity anticipated, the proximity or remoteness in time of
the conduct, the type of teaching certificate held by the party involved, the
extenuating or aggravating circumstances, if any, surrounding the conduct,
the praiseworthiness or blameworthiness of the motives resulting in the
conduct, the likelihood of the recurrence of the questioned conduct, and the
extent to which disciplinary action may inflict an adverse impact or chilling
effect upon the constitutional rights of the teacher involved or other
teachers.” (Morrison v. State Board of Education, supra, 1 Cal.3d at p. 229,
fns. omitted.)
8
because he did not believe the [D]istrict had the authority to issue him such a
directive.”
The ALJ elaborated: despite Gensler’s several “positive
attributes,” he nevertheless “expressed no remorse or acceptance of
responsibility for his conduct. He maintains the erroneous position that in
order to be effective, he needs to maintain the conversational, and often
crude, language that one might overhear in a student dining room or on the
sports field. The fact is, if [Gensler] elected to do so, he could engage his
students with the material, maintain participation, and exhibit the
professionalism expected of a professor with [Gensler]’s academic pedigree.
There are plenty of examples of educators across many different media
platforms who do just that. [Gensler]’s belief that the binary decision of being
‘off-the-wall Jerry Springer’ or ‘boring textbook-reading Mr. Rogers’ is simply
a fallacy. Finally, and most concerning, is the way [Gensler] dealt with
students he deemed to be a problem. [Gensler] might be correct that most
complaints were from ‘D’ or ‘F’ students. But the responsibility of a college
professor is for all students—not just the ones who do well or personally
relate to [Gensler]. [Gensler]’s often derisive and dismissive attitude to those
who questioned his authority highlight the fact that he lacks the
temperament to be in a community college classroom. Accordingly,
overwhelming evidence established that [Gensler] does not have the
temperament to comport his behavior to the professional standards expected
by the [D]istrict and is thus evidently unfit for service.”
3. The ALJ Rejected Gensler’s Defenses
Notwithstanding Gensler’s defenses, the ALJ found the District
provided Gensler a timely evaluation under section 87663 and therefore the
District complied with section 87661 when it terminated Gensler’s
9
employment. The ALJ determined, even if the District did not strictly comply
with section 87661 or the District’s master agreement with the faculty
association, the doctrine of substantial compliance applied to the instructor
evaluation requirements. Additionally, the ALJ rejected Gensler’s argument
the District violated his First Amendment rights.
II.
PETITION FOR WRIT OF MANDATE
“In January 2021, Gensler filed a [petition for writ of mandate],
naming the Board and the District as respondents, in which he sought the
issuance of a writ ‘to vacate the termination decision of [the ALJ] and order
the reinstatement of Gensler with back pay.’ The petition asserted six causes
of action.
“In the first cause of action, Gensler asserted respondents
provided defective notice and lacked jurisdiction, [because they violated:]
sections 87671, subdivision (a) (failure to conduct a current evaluation)[;]
87663, subdivision (c) (failure to include a peer review)[;] 87663, subdivision
(g) (failure to include student evaluations)[;] 87031, subdivision (b)(1) (failure
to allow Gensler to provide written comments to derogatory material placed
in his personnel file which was used in the termination process)[;] 87680
(considering and relying upon evidence older than four years)[;] and 87672
(failure to provide notice of the complete and precise decision of the governing
board and the reasons for the termination).
“In the second cause of action in the petition, Gensler asserted
the ALJ erred by concluding Gensler had engaged in unprofessional conduct
justifying the termination of his employment.
10
“In the third cause of action, Gensler asserted the ALJ erred by
concluding Gensler’s statements were not protected by the First Amendment
to the United States Constitution and his right to academic freedom.
“In the fourth cause of action, Gensler asserted he was deprived
of a fair trial. He asserted the ALJ abused his discretion by precluding
opening statements and closing argument, committing evidentiary error,
relying on cases the Board had not cited in its briefing, ignoring pretrial
motions and the Board’s alleged discovery abuses, and denying Gensler’s
requests for sanctions and continuances.
“In the fifth and sixth causes of action, Gensler asserted the
ALJ’s findings of Gensler’s ‘“evident unfitness”’ and ‘“persistent failure to
follow rules,”’ respectively, should be reversed.
“In the petition’s prayer for relief, Gensler stated he “respectfully
prays that the court enter judgment against [r]espondents as follows:
“‘1. For a [writ of mandate] to be issued under Code of Civil
Procedure section 1094.5 under seal of this court, ordering the Board . . . .
“‘a. to reinstate . . . Gensler as a full-time tenured faculty member
of Saddleback College[;] and
“‘b. to reimburse . . . Gensler for lost wages and benefits arising
from this action[;]
“‘2. For . . . Gensler’s costs in this action, including attorneys’
fees[;]
“‘and
“‘3. For such other relief as the court considers just and proper.”
(Some capitalization omitted.)
11
“Respondents filed an answer to the petition.” (Gensler v. Bd. of
Trustees of the South Orange County Community College Dist. (Aug. 22, 2023,
No. G061503) [nonpub. opn.].)
III.
TRIAL COURT’S DECEMBER 2021 ORDER AND APPEAL
In December 2021, after considering the parties’ evidence and
arguments, Judge Derek W. Hunt remanded the matter to respondents to
perform a peer review evaluation. Gensler appealed, and a panel of this
appellate court held the order was not appealable. (Gensler v. Board of
Trustees of the South Orange County Community College District, supra,
G061503.)
IV.
TRIAL COURT’S OCTOBER 2023 AND JANUARY 2024 MINUTE ORDERS
In an October 2023 minute order, Judge Kimberly A. Knill noted,
during a status conference, both parties asserted no additional briefing was
necessary and that she would not remand for a peer review.4 In a January
2024 minute order, Judge Knill took the matter under submission, explaining
no argument was required.
4 In April 2023, Judge Knill was assigned to the present case, due
to the retirement of Judge Hunt. As the prior judge was unavailable, Judge
Knill was able to reconsider Judge Hunt’s prior ruling. (See In re Marriage of
Oliverez (2015) 238 Cal.App.4th 1242, 1247 [“A trial court’s discretion to
reconsider another judge’s prior ruling is necessarily narrow and usually only
appropriate when the prior judge is unavailable”].)
12
V.
TRIAL COURT’S DENIAL OF PETITION FOR WRIT OF MANDATE
In February 2024, the trial court denied the petition for writ of
mandate. While exercising its independent judgment on the evidence, the
court concluded the following. Respondents did not act in excess of their
jurisdiction because the ALJ properly found respondents substantially
complied with the evaluation requirement in section 87671. The ALJ did not
abuse his discretion by considering Gensler’s unprofessional conduct in
reviewing the charge for evident unfitness to teach. The ALJ did not abuse
his discretion by rejecting Gensler’s First Amendment and academic freedom
arguments. Gensler had a fair trial before the ALJ. The ALJ did not abuse
his discretion by finding Gensler was evidently unfit for service under section
87732, subdivision (d) and Gensler persistently failed to follow the rules
under section 87732, subdivision (f). The court entered judgment in favor of
respondents.
Gensler timely appealed.
DISCUSSION
I.
GOVERNING STATUTORY SCHEME
“The terms and conditions of employment for community college
employees are governed by a comprehensive statutory scheme set forth in the
Education Code. (§ 87660 et seq. [governing ‘the evaluation of, the dismissal
of, and the imposition of penalties on, community college faculty’].) Contract
or regular employees ‘may be dismissed or penalized for one or more of the
grounds set forth in Section 87732.’ (§ 87667.) ‘A “regular” employee is . . . one
who has achieved tenure. “Contract” status is the first step toward tenure.’
[Citation.] Section 87732 provides multiple independent bases upon which an
13
employer may take action against an employee.” (Ricasa v. Office of
Administrative Hearings (2018) 31 Cal.App.5th 262, 272 (Ricasa).) The
relevant bases here are: “[e]vident unfitness for service” (§ 87732, subd. (d))
and “[p]ersistent violation of, or refusal to obey, the school laws of the state or
reasonable regulations prescribed for the government of the community
colleges by the board of governors or by the governing board of the
community college district employing him or her” (Id., subd. (f)).
“The governing board determines whether an employee is to be
dismissed or penalized and whether the dismissal or penalty shall be imposed
immediately or postponed. (§ 87669.) The employee ‘may be dismissed or
penalized if one or more of the grounds set forth in Section 87732 are present
and the following are satisfied: [¶] (a) The employee has been evaluated in
accordance with standards and procedures established in accordance with the
provisions of this article. [¶] (b) The district governing board has received all
statements of evaluation which considered the events for which dismissal or
penalties may be imposed. [¶] (c) The district governing board has received
recommendations of the superintendent of the district and, if the employee is
working for a community college, the recommendations of the president of
that community college. [¶] (d) The district governing board has considered
the statements of evaluation and the recommendations in a lawful meeting of
the board.’ (§ 87671.)
“‘If a governing board decides it intends to dismiss or penalize a
contract or regular employee, it shall deliver a written statement, duly signed
and verified, to the employee setting forth the complete and precise decision
of the governing board and the reasons therefor.’ (§ 87672.) The employee
then has 30 days to object to the governing board’s decision. (§ 87673.)
14
“If the parties do not agree to an arbitrator (§ 87674), then the
governing board must certify the matter to the [Office of Administrative
Hearings] (§ 87678). An ALJ conducts proceedings ‘in accordance with
Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2
of the Government Code.’ (§ 87679.) ‘The written notice delivered to the
employee pursuant to Section 87672 shall be deemed an accusation. The
written objection of the employee delivered pursuant to Section 87673 shall
be deemed the notice of defense.’ (§ 87679.)
“The ALJ must determine whether cause exists to dismiss or
penalize the employee and whether to dismiss or penalize the employee.
(§ 87680.) The governing board or the employee may petition the court for
review of the ALJ’s decision. (§ 87682.)” (Ricasa, supra, 31 Cal.App.5th at
pp. 272–273.)
II.
STANDARD OF REVIEW
A. Trial Court’s Standard of Review of the Administrative Decision
A trial court exercises its independent judgment in reviewing an
administrative decision. (§ 87682.) “In exercising its independent judgment, a
trial court must afford a strong presumption of correctness concerning the
administrative findings, and the party challenging the administrative
decision bears the burden of convincing the court that the administrative
findings are contrary to the weight of the evidence.” (Fukuda v. City of Angels
(1999) 20 Cal.4th 805, 817.) “[T]he presumption provides the trial court with
a starting point for review—but it is only a presumption, and may be
overcome. Because the trial court ultimately must exercise its own
independent judgment, that court is free to substitute its own findings after
first giving due respect to the agency’s findings.” (Id. at p. 818.)
15
B. Standard of Review on Appeal
On appeal, “[w]e review the trial court’s determination under the
substantial evidence test.”5 (Ricasa, supra, 31 Cal.App.5th at p. 282.) “Our
focus is on the trial court’s findings.” (Shenouda v. Veterinary Medical Bd.,
supra, 27 Cal.App.5th at p. 512.) Therefore, we do not consider any of
Gensler’s arguments asserting the ALJ erred.
“[T]o the extent pure questions of law (e.g., jurisdiction) were
decided at the trial court upon undisputed facts, a de novo standard will
apply at the appellate level.” (Anserv Ins. Services, Inc. v. Kelso (2000)
83 Cal.App.4th 197, 204.) “‘“A challenge to the procedural fairness of the
administrative hearing is reviewed de novo on appeal because the ultimate
determination of procedural fairness amounts to a question of law.”’”
(Boermeester v. Carry (2023) 15 Cal.5th 72, 85.)
III.
THE DISTRICT SUBSTANTIALLY COMPLIED WITH SECTION 87671
Gensler argues respondents acted in excess of their jurisdiction
because they were required to conduct a performance evaluation before
terminating Gensler’s employment. “A . . . regular employee may be
dismissed . . . if one or more of the grounds set forth in Section 87732 are
present and” several criteria “are satisfied,” including, inter alia: “The
employee has been evaluated in accordance with standards and procedures
5 On appeal, Gensler presents no substantial evidence
arguments. His appeal is focused on how the ALJ erred and how the trial
court did not conduct the proper judicial review of the ALJ’s findings.
16
established in accordance with the provisions of this article.”6 (§ 87671,
subd. (a).) Pursuant to these standards and procedures, “[r]egular employees
shall be evaluated at least once in every three academic years.” (§ 87663,
subd. (a).) “Evaluations shall include, but not be limited to, a peer review
process.” (Id., subd. (c).) “It is the intent of the Legislature that faculty
evaluation include, to the extent practicable, student evaluation.” (Id.,
subd. (g).)
“[F]aculty evaluation procedures may be negotiated as part of the
collective bargaining process” (§ 87663, subd. (e)), and “the evaluation shall
be conducted in accordance with the standards and procedures established by
the rules and regulations of the governing board of the employing district”
(id., subd. (b)). The master agreement here provides a somewhat different
evaluation cycle than section 87663, requiring the District to start the
evaluation process every three years (rather than academic years): “1. The
vice president or dean will initiate the tenured faculty evaluation process
every three . . . years. [¶] 2. The evaluation process must be completed within
one year of its initiation, or the process must begin anew.”
Here, Gensler’s last evaluation covered the period between
October 17, 2012, and November 2, 2015. As the master agreement requires
the evaluation process to be initiated every three years, his next evaluation
needed to be initiated no later than November 2, 2018. Respondents do not
represent they initiated the evaluation process by then. The District therefore
6 “‘Regular employee’ or ‘tenured employee’ means an employee of
a district who is employed in accordance with subdivision (c) of Section
87608, subdivision (c) of Section 87608.5, or Section 87609.” (§ 87661,
subd. (d).)
17
did not adhere to the evaluation procedures outlined in the master agreement
and statute.
Nonetheless, we find respondents substantially complied with the
statute (and master agreement). “The rules governing the doctrine of
substantial compliance are well settled. [Citation.] As it is used in the
decisions of this state, the doctrine excuses literal noncompliance only when
there has been ‘actual compliance in respect to the substance essential to
every reasonable objective of the statute.’ [Citations.] Thus, the doctrine gives
effect to our preference for substance over form, but it does not allow for an
excuse to literal noncompliance in every situation.” (Robertson v. Health Net
of California, Inc. (2005) 132 Cal.App.4th 1419, 1430.)
Miller v. Chico Unified School Dist. (1979) 24 Cal.3d 703 (Miller)
is instructive. In early 1976, the plaintiff, a junior high school principal,
received notice of his reassignment to a teaching position. (Id. at p. 709.) He
sought reinstatement to his position as principal, arguing, inter alia, the
school board failed to comply with section 44664 (Miller, at p. 706), which is
analogous to section 87663. “Section 44664, a provision of the Stull Act
(former §§ 13485–13490, now §§ 44660–44665), provides: ‘Evaluation and
assessment of the performance of each certificated employee shall be made on
a continuing basis, at least once each school year for probationary personnel,
and at least every other year for personnel with permanent status. The
evaluation shall include recommendations, if necessary, as to areas of
improvement in the performance of the employee. In the event an employee is
not performing his duties in a satisfactory manner according to the standards
prescribed by the governing board, the employing authority shall notify the
employee in writing of such fact and describe such unsatisfactory
performance. The employing authority shall thereafter confer with the
18
employee making specific recommendations as to areas of improvement in
the employee’s performance and endeavor to assist him in such
performance.’” (Id. at p. 716.) The school board also had guidelines providing
“for annual evaluations of supervisory personnel.” (Id. at p. 717.)
While the trial court in Miller found the school board violated
section 44664 by neglecting to notify the plaintiff in writing that his
performance was unsatisfactory, the California Supreme Court held “the
school board substantially complied with the Stull Act’s mandate that the
board fix performance guidelines for its certificated personnel, evaluate
plaintiff in light of such guidelines, inform plaintiff of the results of any
evaluation, and suggest to plaintiff ways to improve his performance.”
(Miller, supra, 24 Cal.3d at p. 717.) The Supreme Court explained the school
board had evaluated the plaintiff annually in 1973, 1974, and 1975 in
accordance with the guidelines. (Ibid.) In the 1974 evaluation, the school
board suggested areas of improvement. (Ibid.) In April 1975, the school board
also informed the plaintiff that his performance was a concern and reiterated
suggestions for improvement. (Ibid.) In the June 1975 evaluation, the school
board provided written notice of plaintiff’s unsatisfactory conduct and gave
his supervisors an opportunity to recommend improvements. (Ibid.) The
school board scheduled an evaluation for the 1975 to 1976 school year, but
the plaintiff refused to participate. (Ibid.) Nevertheless, the school board met
with him at least twice and suggested strategies to improve. (Ibid.) Thus, the
“plaintiff knew of the board’s close attention to his performance and of
specific ways in which he could alleviate their concerns.” (Ibid.)
The Supreme Court rejected the trial court’s “overly restrictive
interpretation of the requirements of section 44664.” (Miller, supra, 24 Cal.3d
at p. 717.) The Supreme Court considered the purpose of section 44664 and
19
determined: “The obvious objective of the Legislature was to protect the
individual employee, in this case, the principal of a high school, against
arbitrary action by the institution, here the school board, in order to preserve
the individual’s rights against their improper severance. The individual
would be helpless against the institution’s wrongful reassigning him to an
inferior position unless he had the opportunity to know, and if possible, to
counter the reasons for it. At the same time if the trial court in the present
case should find that the board in any event, even in the absence of unproven
accusations against the principal’s conduct, would still have reassigned him,
for its own good reasons, the principal cannot justly complain.” (Id. at p. 718.)
Here, as the trial court found, respondents gave Gensler several
notices of his unsatisfactory performance. First, in July 2016, the District
gave Gensler a “90-Day Notice of Unprofessional Conduct and/or
Unsatisfactory Performance—Notice to Correct Deficiencies.” The notice cited
administrative regulation 4000.5, inter alia. It informed Gensler regarding
unprofessional and unsatisfactory performance due to “threatening and
derogatory comments to [a] student,” who was a military veteran, and
“disparaging remarks based on students’ religious views.” The District issued
the following directive to assist Gensler “in overcoming these deficiencies: “A.
You will immediately stop your unprofessional conduct. [¶] B. You will treat
all students with respect, dignity, and civility. [¶] C. You will neither
retaliate against nor confront students or employees concerning the
aforementioned complaints. [¶] D. You will attend anti-discrimination and
harassment training of at least two hours to be provided by or approved by
the District at a future date. [¶] E. You will adhere to all District policies and
regulations referred to in this notice. [¶] F. You will establish a classroom
environment conducive to learning; model effective critical thinking by being
20
open to differences of opinion; invite students to think independently;
stimulate your students’ interest and desire to learn; provide a positive
learning environment for all student populations; and demonstrate
sensitivity in working with students and employees with diverse backgrounds
and needs.” The District warned: “Your performance will be monitored each
week to evaluate whether you have improved with respect to the problems
outlined in this notice. Should you continue to demonstrate the types of
behavior discussed in this notice, you will be subject to further disciplinary
action, up to and including dismissal from employment.”
Second, in October 2016, Dean Cadence Wynter met with Gensler
regarding “an informal student complaint” and memorialized the meeting in
a memorandum to Gensler. In the memorandum, Wynter wrote the
complainant alleged Gensler “demean[ed] and use[ed] derogatory comments
throughout [his] class sessions.” Wynter also told Gensler he had
embarrassed a student by admonishing her in front of the class for incorrectly
writing her name. Gensler replied by stating he “knew who the student was,
that she was ‘Chinese’ and that she was ‘hyper sensitive and pampered.’”
Wynter advised: “Calling the student ‘pampered’ is derogatory and subjective.
While I know this is not an isolated incident, I expect it to be the last one.
Effective immediately, you are to treat students with respect and not
[publicly] castigate them. More importantly, you are not to make
assumptions about students based on their national origin.”
Third, in September 2017, Denise Whittaker, interim president of
Saddleback College, met with Gensler, after the Board denied an appeal of a
discrimination and harassment claim against him. She memorialized the
meeting in a memorandum to Gensler. She wrote the Board wanted to ensure
Gensler “understood the seriousness of [the] situation,” and Whittaker
21
offered to discuss it with him. Whittaker warned Gensler: “I am concerned
that if another complaint against you occurs which results in yet another
finding of unprofessional conduct (even if the evidence does not rise to a level
of discriminatory behavior), I am concerned that the District would have no
choice but to take disciplinary action, up to and including termination,
against you.” She gave him a copy of section 87732. Whittaker recorded:
“After much discussion, you assured me that you understand that I was
alerting you to potential future action if student complaints result in findings
of unprofessional conduct.”7
This history shows Gensler knew respondents were monitoring
his performance, particularly his insensitive and inappropriate language in
the classroom. Respondents warned him at least a couple of times he could
face disciplinary action if another complaint occurred and provided
opportunities to address his conduct. Here, as in Miller, supra, 24 Cal.3d at
page 718, “[t]he obvious objective of the Legislature was to protect the
individual employee . . . against arbitrary action by the institution . . . in
order to preserve the individual’s rights against their improper severance.”
Gensler cannot assert the charges surprised him or respondents failed to give
him an opportunity to fix his problematic conduct. It is not reasonably
7 We also note, in Gensler’s 2012 to 2015 evaluation, which he
signed in December 2015, he was “advised to be more thoughtful about some
of his public comments to students that can and have [led] to student
complaints.”
22
possible Gensler would have received a more favorable outcome had the
District performed an evaluation by November 2018.8
IV.
THE TRIAL COURT CONDUCTED THE PROPER JUDICIAL REVIEW OF THE ALJ’S
FINDINGS UNDER SECTION 87732, SUBDIVISION (D)
Gensler argues the trial court failed to conduct a proper judicial
review of the ALJ’s finding that Gensler was evidently unfit for service under
section 87732, subdivision (d). He first asserts the court provided a “list of
distorted allegations, including several even [the ALJ] had rejected, without
citation to any supporting evidence.” Gensler suggests this list misrepresents
the ALJ’s findings. But as he recognizes, it is merely a list of allegations, not
findings. Even if the specified allegations are “distorted,” the purported
distortion did not impact the court’s analysis of the ALJ’s findings.
Gensler next asserts: “There is no acknowledgement that Gensler
had contested the allegations in the bullet list, or that [the ALJ] had rejected
several as either false or improper attempts to punish acceptable speech,
much less any attempt to address and resolve the conflicting evidence. There
is not a single citation to the hearing transcripts to support [the trial court]’s
statements, any credibility determinations, or factual findings.” Gensler does
not cite any legal authority requiring the trial court to include such
8 We note the issue of substantial compliance was properly before
the trial court. The District raised the issue, citing Miller, in its posthearing
briefs before the ALJ, and the ALJ addressed the issue in the administrative
decision. Contrary to Gensler’s assertions, the court did not concoct its own
substantial compliance theory. Respondents argued in the court the doctrine
of substantial compliance applied, citing Miller. In its order, the court drew
from Miller for its substantial compliance analysis. Gensler had opportunities
to address the doctrine of substantial compliance, including here before us.
23
information in its order. We therefore deem this argument forfeited. (See
Pinter-Brown v. Regents of University of California (2020) 48 Cal.App.5th 55,
95 (Pinter-Brown) [“When legal argument is not supported by citation to legal
authority on a particular point, ‘we may treat the point as forfeited and pass
it without consideration’”].)
Gensler also contends the trial court failed to review the evidence
because the court’s order lacks citations to the record and provides a list of
“distorted and disproven allegations.” But these do not necessarily indicate
the court failed to consider the evidence. Something more would be needed.
For example, in Ocheltree v. Gourley (2002) 102 Cal.App.4th 1013, 1017–
1018, a case cited by Gensler, it was apparent the court did not review the
administrative record, because it made its decision on a petition for writ of
mandate before the administrative record was prepared.
The trial court here reviewed the ALJ’s findings and, after
exercising its independent judgment, found the ALJ did not err. The court
considered whether the ALJ properly evaluated the Morrison factors and the
ALJ’s examination of whether Gensler’s unfitness was evident. Nothing in
the record shows the court improperly reviewed the ALJ’s findings pursuant
to section 87732, subdivision (d).
V.
THE TRIAL COURT CONDUCTED THE PROPER JUDICIAL REVIEW OF THE ALJ’S
FINDINGS UNDER SECTION 87732, SUBDIVISION (F)
Gensler argues the trial court failed to perform a proper judicial
review of the ALJ’s finding that Gensler persistently refused to follow the
rules under section 87732, subdivision (f). He asserts: “A proper review would
have (1) construed the District’s regulation and identified its essential
elements, (2) examined the entire administrative record, including the
24
hearing testimony, to determine the facts, (3) identified and resolved the
factual disputes and explained the bases for those determinations, and then
(4) analyzed whether the factual findings satisfied the criteria of the
regulation.” Except for number “(2),” Gensler does not cite any legal authority
in support of his assertions. We therefore deem them forfeited (see Pinter-
Brown, supra, 48 Cal.App.5th at p. 95), except for number “(2),” which we
discuss next.
In support of his contention the trial court failed to consider all
the evidence, he asserts the court’s order did not include any citations to the
hearing transcript, nor did it acknowledge factual disputes or evidence in his
favor. But, as we explained ante, these do not necessarily show the court did
not consider the evidence.
The trial court here acknowledged the ALJ’s findings and
concluded: “The evidence reflects [Gensler]’s conduct establishes a persistent
violation of, or refusal to obey the District rules.” The court also concluded:
“[Gensler] has not demonstrated the ALJ committed legal error constituting
an abuse of discretion, or that the findings are not supported by the weight of
the evidence.” These statements indicate the court considered the evidence in
rendering its decision and, after reviewing the administrative decision under
the independent judgment test, it found the ALJ did not err.
VI.
GENSLER’S CONSTITUTIONAL ARGUMENTS FAIL
Gensler argues the District violated his First Amendment rights,
and the trial court did not conduct the required judicial review of the
25
administrative decision.9 He also appears to argue administrative regulation
4000.5 is unconstitutionally vague. We disagree.
A. Gensler Fails to Show Unconstitutional Vagueness
We begin by noting Gensler’s arguments on unconstitutional
vagueness are somewhat ambiguous. In his discussion of the First
Amendment in his opening brief, Gensler starts by stating general First
Amendment principles and then asserts in a subheading: “Vague Regulations
Addressing Sexual Harassment And Racial Discrimination Are Not Valid
Substitutes For A Constitutional Language Policy.” He next summarizes
Cohen v. San Bernardino Valley College (9th Cir. 1996) 92 F.3d 968 (Cohen).
In Cohen, a tenured professor at a community college taught an
English class. (Cohen, supra, 92 F.3d at p. 970.) A student, Ms. M., was
offended with the professor’s “repeated focus on topics of a sexual nature, his
use of profanity and vulgarities, and by his comments which she believed
were directed intentionally at her and other female students in a humiliating
and harassing manner.” (Ibid.) In this class, the professor held a “discussion
on the issue of pornography and played the ‘devil’s advocate’ by asserting
controversial viewpoints.” (Ibid.) He disclosed “he wrote for Hustler and
Playboy magazines and he read some articles out loud in class.” (Ibid.) He
9 Gensler asserts the District violated his academic freedom. But
Gensler does not provide any substantive arguments. “‘[W]here a point is
merely asserted by [appellant] without any [substantive] argument of or
authority for its proposition, it is deemed to be without foundation and
requires no discussion.’ [Citation.] ‘Issues do not have a life of their own: if
they are not raised or supported by [substantive] argument or citation to
authority, we consider the issues’” forfeited. (Holden v. City of San Diego
(2019) 43 Cal.App.5th 404, 418.) We therefore consider this argument
forfeited.
26
then assigned his students to compose “essays defining pornography.” (Ibid.)
Ms. M. asked for a different assignment, but the professor refused. (Ibid.) She
stopped attending the class and failed it. (Ibid.) She filed a complaint
regarding the professor’s statements and conduct asserting the professor
sexually harassed her. (Ibid.)
The community college had a new sexual harassment policy,
providing: “Sexual harassment is defined as unwelcome sexual advances,
requests for sexual favors, and other verbal, written, or physical conduct of a
sexual nature. [I]t includes, but is not limited to, circumstances in which: [¶]
1. Submission to such conduct is made explicitly or implicitly a term or
condition of a student’s academic standing or status. [¶] 2. Such conduct has
the purpose or effect of unreasonably interfering with an individual’s
academic performance or creating an intimidating, hostile, or offensive
learning environment. [¶] 3. Submission to or rejection of such conduct is
used as the basis for academic success or failure.” (Cohen, supra, 92 F.3d at
pp. 970–971.) The community college determined the professor “engaged in
sexual harassment which unreasonably interfered with an individual’s
academic performance and created an intimidating, hostile, or offensive
learning environment,” and it imposed certain disciplinary penalties. (Cohen,
supra, 92 F.3d at p. 971.)
The Ninth Circuit Court of Appeals held the community college’s
sexual harassment policy was unconstitutionally vague as applied to the
professor. (Cohen, supra, 92 F.3d at p. 972.) It explained: “There are three
objections to vague policies in the First Amendment context. First, they trap
the innocent by not providing fair warning. Second, they impermissibly
delegate basic policy matters to low level officials for resolution on an ad hoc
and subjective basis, with the attendant dangers of arbitrary and
27
discriminatory application. Third, a vague policy discourages the exercise of
[F]irst [A]mendment freedoms.” (Ibid.) In Cohen, the professor’s “speech did
not fall within the core region of sexual harassment as defined by the policy.
Instead, officials of the college, on an entirely ad hoc basis, applied the
policy’s nebulous outer reaches to punish teaching methods that Cohen had
used for many years. Regardless of what the intentions of the officials of the
college may have been, the consequences of their actions can best be
described as a legalistic ambush. Cohen was simply without any notice that
the policy would be applied in such a way as to punish his longstanding
teaching style—a style which, until the college imposed punishment upon
Cohen under the policy, had apparently been considered pedagogically sound
and within the bounds of teaching methodology permitted at the college.”
(Ibid., capitalization omitted.) Because the court held the policy was
unconstitutionally vague as applied to the professor, it “decline[d] to define
today the precise contours of the protection the First Amendment provides
the classroom speech of college professors.” (Id. at pp. 971–972.)
After summarizing Cohen in his opening brief, Gensler asserts:
“the District’s ‘hostile environment’ regulation requires that the District
prove the existence of numerous elements, including (1) a specific victim, who
must be (2) subjectively and (3) objectively offended by conduct which (4)
must permeate the class and not be (5) related to the curriculum or (6)
protected by the First Amendment. As a harassment policy, it may be
reasonably detailed. However, it is not intended to be a policy governing
speech and it does not acknowledge, or attempt to comply with, the
constitutional strictures of such regulations.”
“‘[T]o demonstrate error, an appellant must supply the reviewing
court with some cogent argument supported by legal analysis and citation to
28
the record.’ [Citation.] ‘We are not obliged to make other arguments for
[appellant] [citation], nor are we obliged to speculate about which issues
counsel intend to raise.’ [Citations.] We may and do ‘disregard conclusory
arguments that are not supported by pertinent legal authority or fail to
disclose the reasoning by which the appellant reached the conclusions he
wants us to adopt.’” (Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th
270, 277.)
Here, Gensler does not explain why the regulation does not
“attempt to comply with[] the constitutional strictures of such regulations,”
nor does he explicitly connect his assertions to Cohen. His assertions do not
constitute a cognizable argument that the District violated Gensler’s First
Amendment rights. We therefore deem these arguments forfeited. (See
Hernandez v. First Student, Inc., supra, 37 Cal.App.5th at p. 277.)
Nonetheless, elsewhere in his opening and reply briefs, it appears
Gensler is arguing the District’s harassment policy in administrative
regulation 4000.5 is unconstitutionally vague, because it resembles the
language in the sexual harassment policy in Cohen. In particular, Gensler
points out both policies contain language regarding how the offending
conduct “unreasonably interfere[s]” with learning. (Cohen, supra, 92 F.3d at
p. 971.)
“‘Vagueness doctrine is an outgrowth not of the First
Amendment, but of the [d]ue [p]rocess [c]lause of the Fifth Amendment.’
[Citation.] ‘[T]he underlying concern is the core due process requirement of
adequate notice.’” (Wilson v. San Luis Obispo County Democratic Central
Com. (2009) 175 Cal.App.4th 489, 499.) “A law is unconstitutionally vague if
it fails to meet two basic requirements: (1) The regulations must be
sufficiently definite to provide fair notice of the conduct proscribed; and (2)
29
the regulations must provide sufficiently definite standards of application to
prevent arbitrary and discriminatory enforcement.” (Snatchko v. Westfield
LLC (2010) 187 Cal.App.4th 469, 495.) “‘Only a reasonable degree of certainty
is required.’ [Citation.] If a reasonable and practical construction can be
given, the law will not be held void for uncertainty.” (Ibid.)
As the trial court found, unlike the policy in Cohen,
administrative regulation 4000.5 specifies in significant detail what conduct
constitutes harassment. Administrative regulation 4000.5 defines prohibited
verbal harassment: “Inappropriate or offensive remarks, slurs, jokes or
innuendoes based on a person’s race, gender, sexual orientation, or other
protected status. This may include, but is not limited to, inappropriate
comments regarding an individual’s body, physical appearance, attire, sexual
prowess, marital status, or sexual orientation; unwelcome flirting or
propositions; demands for sexual favors; verbal abuse, threats or
intimidation; or sexist, patronizing or ridiculing statements that convey
derogatory attitudes based on gender, race, nationality, sexual orientation or
other protected status.” In conjunction with the definitions of prohibited
harassment, administrative regulation 4000.5 also explains in sufficient
detail what constitutes a hostile academic environment. It specifies a hostile
academic environment exists “where it is permeated by sexual innuendo;
insults or abusive comments directed at an individual or group based on
gender, race nationality, sexual orientation or other protected status; or
gratuitous comments regarding gender, race, sexual orientation, or other
protected statuses that are not relevant to the subject matter of the class or
activities on the job.” And, unlike in Cohen, supra, 92 F.3d at page 972, where
the professor had no notice the new sexual harassment policy “would be
applied in such a way as to punish his longstanding teaching style,” Gensler
30
received notice that administrative regulation 4000.5 could apply to him in
July 2016 and additional notices warning him of his conduct. We therefore
find Cohen inapplicable here.
B. Gensler Fails to Demonstrate How the Trial Court Erred
Gensler next contends the trial court erred for several reasons.
First, he asserts: “While [the court] cited a small portion of the regulation
[citation], [the court] made no effort to identify the required elements, or
what evidence supposedly established the existence of each element, or that
no defenses applied.” Gensler does not cite any legal authority in support. We
therefore consider this argument forfeited. (See Pinter-Brown, supra, 48
Cal.App.5th at p. 95.)
Second, Gensler argues the trial court’s distinguishing of Cohen
from the present case (i.e., the District’s regulation specified in greater detail
proscribed conduct compared with the policy in Cohen) “has no basis in fact.”
He claims, “Cohen does not provide the full text of the San Bernardino
Community College District policy, so one cannot make the comparison.” This
argument is misguided. Nothing in Cohen suggests the Cohen court did not
set forth the entire sexual harassment policy in its decision.
Third, Gensler contends: “[T]he issue of whether the District’s
regulation is more detailed than that in Cohen is irrelevant. The issue is
whether the District’s regulation is sufficiently detailed to pass constitutional
standards to be employed as a language policy. [The trial court] does not
address that issue. [The court]’s statement that Gensler had not provided any
legal authority that a language policy is required is demonstrably incorrect,
as Gensler cited and discussed Cohen in his trial brief.” This contention is
misguided too. The relevant issue in Cohen was whether the sexual
harassment policy was unconstitutionally vague. As the court correctly
31
observed, Cohen does not address language policies. Nor did Cohen address
whether the First Amendment protected the professor’s speech. (Cohen,
supra, 92 F.3d at p. 972.)
Fourth, Gensler argues the trial court misplaced its reliance on
Demers v. Austin (9th Cir. 2012) 746 F.3d 402 and Pickering v. Board of
Education (1968) 391 U.S. 563, because these cases involved “out-of-
classroom speech.” That distinction is unpersuasive. Demers suggests the
Pickering test applies to teaching: “We conclude that Garcetti [v. Ceballos
(2006) 547 U.S. 410] does not—indeed, consistent with the First Amendment,
cannot—apply to teaching and academic writing that are performed
‘pursuant to the official duties’ of a teacher and professor. We hold that
academic employee speech not covered by Garcetti is protected under the
First Amendment, using the analysis established in Pickering.”10 (Demers, at
p. 412.)
C. Gensler Fails to Establish a First Amendment Violation
Even if the trial court committed error, Gensler does not offer any
substantive arguments explaining how the District violated the First
Amendment. In Gensler’s opening brief, under the heading regarding First
Amendment violations, he does not identify any purported protected speech
or conduct under the First Amendment, except two: his statement concerning
Iranian women “‘dress[ing] like hookers’” and his comment regarding a
10 “The Pickering test has two parts. First, the employee must
show that his or her speech addressed ‘matters of public concern.’ [Citations.]
Second, the employee’s interest ‘in commenting upon matters of public
concern’ must outweigh ‘the interest of the State, as an employer, in
promoting the efficiency of the public services it performs through its
employees.’” (Demers v. Austin, supra, 746 F.3d at p. 412.)
32
student’s physical appearance and attire during a jail tour. But he does not
provide any substantive argument with citation to authority. Additionally, in
his reply brief, under the heading regarding First Amendment violations, he
asserts an additional instance of purported protected conduct: wearing a
jacket with a Playboy logo. In support, he cites his opening brief and Tinker v.
Des Moines School Dist. (1969) 393 U.S. 503, but he fails to explain how that
authority applies here.11 We therefore decline to address these arguments.12
(See Doe v. McLaughlin (2022) 83 Cal.App.5th 640, 654.)
VII.
GENSLER’S BIAS AND FAIRNESS ARGUMENTS ARE UNAVAILING
Gensler presents several arguments regarding bias and fairness.
We address them in turn.
A. The Accusation Complied with Section 87672
Gensler argues the accusation failed to give fair notice and
contains vague allegations. Aside from citing the pertinent statute, section
11 California Rules of Court, rule 8.204(a)(1)(B) requires every
brief to “[s]tate each point under a separate heading or subheading
summarizing the point, and support each point by argument and, if possible,
by citation of authority.” To the extent Gensler believes he presented
substantive First Amendment arguments elsewhere in his briefs under other
headings, we would disregard such arguments and treat them as forfeited.
(See Tsakopoulos Investments, LLC v. County of Sacramento (2023)
95 Cal.App.5th 280, 310 [“‘Failure to provide proper headings forfeits issues
that may be discussed in the brief but are not clearly identified by a
heading’”].)
12 For the first time in his reply brief, Gensler argues the trial
court failed to conduct a First Amendment analysis on each individual
statement. We consider this argument forfeited, as “we will not consider
matters raised for the first time in the reply brief.” (Sachs v. Sachs (2020)
44 Cal.App.5th 59, 66.)
33
87672, Gensler does not cite any authorities, and we are unaware of any
authorities addressing this question.
Section 87672 provides in pertinent part: “If a governing board
decides it intends to dismiss or penalize a contract or regular employee, it
shall deliver a written statement, duly signed and verified, to the employee
setting forth the complete and precise decision of the governing board and the
reasons therefor.”
Here, the accusation was “complete and precise.” (§ 87672.) It
alleged Gensler “engaged in [e]vident [u]nfitness for [d]uty and [p]ersistent
violations of, or refusal to obey, the school laws of the state or reasonable
regulations prescribed for the government of the community colleges by the
governing board of the [District] as set forth in . . . section 87732.” The
accusation, which is 25 pages and contains 42 exhibits in support, then
spelled out in detail multiple alleged incidents in support, providing general
dates and a summary of the conduct. For example, one allegation states: “In
Fall 2017 and Spring 2018, Gensler told his . . . students about having taken
a prior group of . . . students on a tour of a jail. He spoke about a female
student who dressed inappropriately for the jail. In Fall 2017, he told his
class that a former female student wore shorts to the jail and the prisoners
made noises and whistled at her. During his Spring 2018 class, he told
his . . . students that this female former student wore a revealing shirt to the
jail tour and that she had a chest ‘out to here,’ while he cupped his hands out
in front of his chest to simulate large breasts. He also said that the former
student’s pants were ‘painted on.’ Gensler referred to a female student as
‘really good looking,’ and her ‘boobs just popping out.’” Contrary to Gensler’s
assertions, the accusation was far from vague.
34
B. Gensler Forfeited His Argument Regarding Alleged Bias and Time-Barred
Allegations
For the first time on appeal, Gensler argues the ALJ was biased
because the ALJ allowed respondents’ evidence regarding time-barred
allegations in the accusation but prohibited Gensler from introducing
evidence to disprove them. Gensler cites section 87680, which provides in
relevant part: “No testimony shall be given or evidence introduced relating to
matters which occurred more than four years prior to the date of the filing of
the notice. Evidence of records regularly kept by the governing board
concerning the employee may be introduced, but no decision relating to the
dismissal or suspension of any employee shall be made based on charges or
evidence of any nature relating to matters occurring more than four years
prior to the filing of the notice.” (§ 87680.)
“‘It is axiomatic that arguments not raised in the trial court are
forfeited on appeal.’” (People v. Graham (2024) 102 Cal.App.5th 787, 798.) We
therefore consider this argument forfeited and decline to address it.
C. Gensler Fails to Provide Any Citations to Authorities in Support of Several
Arguments
Gensler presents several arguments without citing any legal
authorities in support. First, he argues the District stonewalled the discovery
process, and this stonewalling prejudiced him. He asserts the District refused
to answer over 150 interrogatories. He also asserts he filed a motion to
compel discovery, which the ALJ denied, and a pretrial motion for
evidentiary sanctions, which the ALJ denied.
Second, Gensler argues the District sought to conceal witnesses
and block him from contacting them. He asserts the District refused to
disclose the last names of student witnesses for more than three months, and
35
the District did not disclose the substance of their projected testimony 19
days before trial. He posits, “Through these stratagems and others,
[r]espondents successfully prevented Gensler from learning what evidence
would be presented against him and preparing to meet it.”
Third, Gensler contends the ALJ improperly denied his request to
continue the hearing. He asserts he explained to the ALJ that discovery
abuses hindered his preparation.
Fourth, Gensler argues the ALJ demonstrated bias and abused
his discretion by limiting the number of witnesses he could call but allowing
respondents to call as many witnesses as it wished.
Fifth, Gensler asserts the ALJ showed bias and abused his
discretion by relying “on his own speculation to bolster his ‘evident unfitness’
conclusion.”13
Because Gensler does not provide any legal authorities in support
of these arguments, we decline to address them.14 (See Pinter-Brown, supra,
48 Cal.App.5th at p. 95.)
13 Gensler also argues the trial court did not address his
unfairness and bias arguments. We disagree. Even if the court did not, we
have addressed Gensler’s arguments ante.
14 In his reply brief, Gensler contends respondents fail to address
the misconduct and therefore concede the existence of the misconduct.
Gensler “misperceives his role as appellant: it is” his, rather than
respondents’, “burden to affirmatively demonstrate error. [Citation.] This
burden remains the same whether or not” respondents file “a brief or
provide[] argument or authority on an issue.” (Doe v. McLaughlin, supra,
83 Cal.App.5th at p. 654.) Additionally, in his reply brief, Gensler argues
respondents misstate the evidence in the “‘Statement of Facts’” of their brief.
As Gensler does not cite any legal authorities in support of his argument, we
deem them forfeited. (See Pinter-Brown, supra, 48 Cal.App.5th at p. 95.)
36
DISPOSITION
The judgment is affirmed. Respondents are entitled to costs.
MOTOIKE, ACTING P. J.
WE CONCUR:
SANCHEZ, J.
GOODING, J.
37