Filed 9/24/13 Yang v. Regents CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

ANNA YANG, D062755

Plaintiff and Appellant,

v. (Super. Ct. No. 37-2012-00090268)

THE REGENTS OF THE UNIVERSITY OF

CALIFORNIA,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of San Diego County, William S.

Dato, Judge. Affirmed.

Law Offices of Jose A. Gonzales and Jose A. Gonzales for Plaintiff and Appellant.

Charles F. Robinson, Karen J. Petrulakis, Margaret L. Wu and Sunil R. Kulkarni

for Defendant and Respondent. Plaintiff Anna Yang was a pharmacy student at the Skaggs School of Pharmacy

and Pharmaceutical Science (the School) at the University of California, San Diego

(UCSD). She failed four courses during the five years she attended the School. In 2011

she failed two Advanced Pharmacy Practice Experiences (APPEs), which are similar to

clinical rotations. By failing two APPEs in the same year, Yang was subject to dismissal

under the School's policies.

The School's Academic Oversight Committee (Committee), a group of faculty

who ensure that students meet the School's academic standards, held a hearing where

they reviewed Yang's academic record, and listened to her explanations. At the end of

the hearing the Committee decided to dismiss Yang from the School because of her poor

academic performance. The Committee also based its decision on comments by several

instructors that Yang's substandard performance compromised patient safety.

After losing an internal appeal, Yang brought a petition for writ of mandate

(petition) in the San Diego County Superior Court against defendant Regents of the

University of California (University), seeking to overturn the Committee's findings and

reinstate her to the School. The court denied Yang's petition, finding the Committee did

not err in dismissing her based on her poor academic performance.

On appeal, Yang asserts (1) the School did not document her academic

performance issues with a "Professional Evaluation Form," or "PEF"; and (2) her

dismissal was unlawful because the school did not comply with its clinical course grade

remediation policies. The Regents in turn argue Yang's appeal is untimely as she did not

2 appeal from the order denying her petition but instead appealed from a later notice of

entry of judgment. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. Classroom and APPE History.

In February 2002 Yang arrived in the United States after receiving a Bachelor of

Arts degree in business from Sichuan University in China. Beginning in April 2002

Yang attended the California Polytechnic State University in Pomona, and in 2006 she

earned a Bachelor of Science with a major in microbiology and a minor in chemistry. In

May 2006 Yang was admitted to the School.

Yang was a student at the School from fall 2006 through November 2011. Her

academic record for the classroom/didactic phase of the curriculum included two failing

grades. Because Yang remediated these grades, however, the School permitted Yang to

progress to the clinical rotation phase of the curriculum, which began in the winter

quarter of the 2010-2011 academic year.

This phase of the program requires a student to pass seven APPEs, consisting of

four required rotations and three elective rotations. The four required APPEs are two

acute care rotations and two ambulatory care rotations. A student can only take one

APPE at a time, with each APPE lasting approximately six weeks.

The School's progression policy applicable to APPEs provides: "If a student

receives an F or U grade for a specific APPE, he/she will be allowed to continue their

remaining, scheduled APPEs. Upon completion of the last scheduled APPE, the

3 student will repeat and pass the APPE where an F or U grade was received or complete

and pass an equivalent APPE experience." (Italics added.) Accordingly, a student may

only repeat and pass a failed APPE, or complete and pass an equivalent APPE, after the

student finishes all other remaining scheduled APPEs.

According to the School, this policy is in place because scheduling APPEs is a

complex, difficult task for the School. APPEs are available at over 100 clinical locations,

and over 150 instructors supervise APPEs. Each student has a unique APPE schedule.

Therefore, the School schedules all seven of a student's APPEs even before a student has

started his or her first APPE. The School concluded that it would be disruptive to that

student's schedule, other students' schedules, the clinical sites, and APPE instructors to

require immediate remediation of a failed APPE.

Yang failed an acute care APPE at Scripps La Jolla Hospital in the spring of 2011.

Because this was her first failed APPE, the School allowed her to remain in the School

and continue taking her scheduled APPEs, with the understanding that she would

remediate her failed acute care APPE at the end of her scheduled APPEs. Yang then

failed an ambulatory care APPE at UCSD Moores Cancer Center in September 2011.

B. The Committee Hearing and Yang's Internal Appeal

"When the possibility of dismissal is determined, [t]he [Committee] will be

convened to determine dismissal or retention of the student." The Committee is

composed of faculty members and is "concerned with the academic performance of

students." The Committee ensures that students are progressing appropriately through

the School curriculum and that graduates of the School are ready to practice pharmacy

4 accurately, safely, and with professionalism. In making this determination, the

Committee considers a student's entire academic history in the preclinical and clinical

arenas.

At Committee hearings addressing potential dismissal, the Associate Dean for

Student Affairs presents to the Committee all evidence that "led to the possibility of the

dismissal of the student." That evidence includes a student's complete academic file.

The student, who is provided before the hearing with all information the Committee has,

then has a chance to respond, if he or she chooses to do so. Thereafter the Committee

meets in closed session to determine whether dismissal is warranted. A vote for

dismissal must be based solely upon the evidence presented at the hearing and be

approved by at least two-thirds of the Committee members present.

As discussed, ante, after Yang failed her second APPE in the same year, she was

subject to dismissal. The School held a Committee hearing on November 9, 2011 to

consider her dismissal. At the hearing, Dr. Candis Morello, Associate Dean for Student

Affairs, presented information relating to Yang's performance at the School. Dr. Morello

informed the Committee about Yang's academic deficiencies, including the two recent

failed APPEs and the two past failed classroom courses.

One aspect of academic performance for a pharmacist is ensuring patient safety.

Dr. Morello presented to the Committee evidence concerning Yang's conduct that was

potentially endangering patients. As an example, one APPE instructor stated that Yang

could not calculate correct doses of various medications and "frequently confused

medications." Another APPE instructor stated that "[w]e hesitated in allowing Anna

5 opportunities to counsel and question complex patients based on her lack of clinical and

critical thinking."

Dr. Morello also detailed Yang's professionalism issues as documented by her

APPE instructors, including Yang's rudeness and combativeness, tardiness to rotations,

and failure to take responsibility for her actions.

After Yang presented her side of the story to the Committee, the Committee had

"considerable discussion." Following that discussion, the Committee unanimously voted

in favor of her dismissal, giving several reasons for its decision. Most of the reasons

listed by the Committee were academic, including: (1) "A history and pattern of poor

academic performance in the first three years of the curriculum as well as two failures

during the [APPE] in core acute patient care and ambulatory care rotations"; (2) "A

fundamental lack of clinical and medication knowledge leading to the concern for patient

safety. [The School] has an obligation to ensure competence of our trainees and

graduates"; and (3) "Lack of recognition of her own weaknesses and the importance of

her knowledge gaps and mistakes that could lead to serious patient harm."

The School formally dismissed Yang in November 2011. In the dismissal letter,

the School stated, "The main reasons for this decision of dismissal included a history and

pattern of poor academic performance, in the first three years of the curriculum as well as

two failures during the [APPE], a fundamental lack of clinical and medication knowledge

leading to the concern for patient safety, and a lack of professionalism. [The School] has

an obligation to ensure competence of our trainees and graduates."

6 Yang then appealed internally. She submitted additional evidence to Palmer

Taylor, Ph.D., Dean of the School, and personally met with Dean Taylor. After

considering the evidence before him, in December 2011 Dean Taylor upheld the

Committee's dismissal decision. In doing so, he stated "I do not see grounds for reversing

that decision based on my review of your academic record and the input of faculty who

have instructed you in preclinical courses and advanced practice experiences." Under

School policy, his decision was final.

Kim Barrett, Ph.D., Dean of Graduate Studies at the University, also confirmed

the dismissal decision. In upholding the dismissal decision Barrett stated, "I find that

your dismissal was decided on purely academic grounds and thus I have no ability to

overturn it. There were persistent academic concerns including, but not limited to, your

professionalism that, in aggregate, led to the conclusion that you had not attained the

standard necessary to continue as a student. Further, while you imply that non-academic

factors were used to assign grades, you have previously raised these issues with the

School and they have been investigated thoroughly by Associate Dean Morello. She

found no evidence that criteria other than academic ones were used to assign failing

grades during your clinical rotations, and I concur with that assessment."

With regard to Yang's complaint that she was not provided with a PEF, Barrett

stated, "I recognize your complaint that a professionalism evaluation form (PEF) was not

completed. However, I am informed that the PEF is not mandatory and that it is a

relatively new procedure and so some faculty are not yet aware of the process. I do not

believe that the completion of this form would have changed circumstances materially,

7 since you were directly informed of professionalism concerns on your written evaluations

and also, for example, being required to complete a time-sheet and sign in and out at your

clinical placements due to your frequent tardiness. Moreover, in that the grounds for

your dismissal were academic, in part based on your poor knowledge of common drugs

and their indications as well as other fundamental aspects of knowledge required for

pharmacy practice, it is unlikely that any changes in behavior that hypothetically might

have resulted from the PEF process would have altered the outcome."

C. Feedback Given to Yang Regarding Her Professionalism Issues

All students at the School must "demonstrate professionalism as part of the

requisite clinical competency." Professionalism problems can include such items as

tardiness to clinical rotations, lack of respect for patient confidentiality or autonomy,

abusing one's power with colleagues or patients, rudeness, not responding to instructor

feedback, and lacking empathy for patients.

When a student is having professionalism issues, the School seeks to point out

those issues to the student and help the student remedy them. An instructor who has

observed the offending behavior will discuss that behavior with the student, document the

behavior in writing, and discuss with the student potential remedies. An instructor also

may choose to document professionalism issues on the School's "Professional Evaluation

Form" (PEF). However, according to the School, use of the PEF is optional. As long as

the student is adequately informed of these professionalism issues and is given a

remediation plan, the School does not require that this particular document be used.

8 Dr. Joe Ma, one of Yang's instructors during an APPE, provided handwritten

comments to Yang in August 2011 on her self-assessment mid-point evaluation. Dr. Ma

provided Yang with specific goals concerning professionalism and academic

improvement. He also discussed his concerns with Yang directly, in accordance with the

School's practice to hold mid-point APPE evaluations with students in person.

D. Petition and Court's Ruling

Yang filed her original petition in January 2012 and filed an amended petition in

February 2012. After the University answered in May 2012, and the administrative

record was lodged, the parties filed their briefs.

On June 20, 2012, the court issued a tentative ruling finding in the University's

favor on all of Yang's claims. After oral argument on June 21, 2012, the trial court

confirmed the ruling in open court and later issued a formal minute order, which

duplicated its tentative ruling. In its minute order, the court found that the PEF "is

directed at assisting students with professional behavior issues." The trial court also

found that the PEF is limited to documenting professionalism issues and thus is not

geared toward addressing academic performance problems. Finding that "the record

contains ample evidentiary support for the School's decision to dismiss [Yang] based on

her academic performance alone," the court held that "Yang has failed to establish that

the School acted arbitrarily, capriciously or in bad faith when it dismissed her without

issuing a PEF."

9 The court also found that "contrary to Yang's argument, the APPE progression

policy precluded her from formally remediating her failed grade until she had completed

all seven of her clinicals [i.e., APPEs]." The trial court further found that the School's

policies "establish that Yang was subject to dismissal once she received two failing

grades [in one year], regardless of whether they were remediated."

On June 22, 2012, the University served Yang with a "Notice of Entry" of the

tentative ruling. The University thereafter prepared a formal judgment. The court

entered the judgment on August 8, 2012, and on August 15, the University served Yang

with a notice of entry of the judgment. Yang filed her Notice of Appeal on October 1.

DISCUSSION

I. TIMELINESS OF APPEAL

A. Background

As we have discussed, Yang filed a petition for a writ of mandamus to seek

reinstatement into the UCSD Pharmacy School. On June 20, 2012, the court issued a

tentative ruling denying the petition. The tentative ruling directed the University "to

serve notice on all parties within 96 hours of the date of this ruling." The court heard oral

argument on June 21, 2012. At the end of the hearing, the court confirmed the tentative

ruling and directed the University to provide notice. That same day, the court issued a

minute order adopting the same findings as the tentative ruling. The minute order also

directed the University to serve notice on all parties within 96 hours.

On June 22, 2012, University served Yang with a document entitled "Notice of

Entry of Ruling." The notice reads:

10 "TO PETITIONER'S COUNSEL OF RECORD:

"1. Please take notice that on June 20, 2012, the Court entered a tentative ruling attached here as Exhibit A. This tentative ruling denied the Petition for Writ of Mandate.

"2. Please take notice that on June 21, 2012, and after oral argument, the Court made final its tentative ruling."

The University attached only the tentative ruling from June 20 to the notice. The

notice was filed on June 26, 2012.

On August 8, 2012, the court entered a final judgment denying the petition. On

August 15, the University served Yang with a "Notice of Entry of Judgment Denying

Petition for Writ of Mandate," and attached a file-stamped copy of the final judgment.

Yang filed her notice of appeal on October 1, 2012.

B. Applicable Authority

California Rules of Court, rule 8.104, subdivision (a) (rule 8.104(a)) provides:

"(a) Normal time Unless a statute or rule 8.108 provides otherwise, a notice of appeal must be filed on or before the earliest of: [¶] (1) (A) 60 days after the superior court clerk serves on the party filing the notice of appeal a document entitled "Notice of Entry" of judgment or a file-stamped copy of the judgment, showing the date either was served; [¶] (B) 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled "Notice of Entry" of judgment or a file-stamped copy of the judgment, accompanied by proof of service; or [¶] (C) 180 days after entry of judgment."

Subdivision (e) of this rule elaborates that "judgment" as used in subdivision (a)

includes "an appealable order if the appeal is from an appealable order." plaintiff filed a motion for class certification, which the trial court denied. (Id. at p. 898.)

The court clerk sent a notice to each of the parties containing the following: (1) a

document entitled " 'STATMENT OF DECISION RE: ALAN'S MOTION FOR CLASS

CERTIFICATION,' " which explained the court's reasons for denying the motion, and

had the court's file stamp; and (2) a minute order entitled " 'RULING ON SUBMITTED

MATTER/MOTION FOR CLASS CERTIFICATION,' " which was not filed-stamped.

(Ibid.)

In Alan, the California Supreme Court was presented with the issue of which

documents satisfied rule 8,104(a)(1) so as to commence the 60-day filing period for a

notice of appeal. (Alan, supra, 40 Cal.4th at p. 901.) The court held:

"The general rule is that a statement or memorandum of decision is not appealable. [Citations.] The rule's practical justification is that courts typically embody their final rulings not in statements of decision but in orders or judgments. Reviewing courts have discretion to treat statements of decision as appealable when they must, as when a statement of decision is signed and filed and does, in fact, constitute the court's final decision on the merits. [Citations.] But a statement of decision is not treated as appealable when a formal order or judgment does follow, as in this case."

The court reasoned that because there was no document entitled " 'Notice of

Entry,' " the clerk's mailing could not have triggered the 60-day filing period unless it

contained a file-stamped copy of the judgment. (Alan, supra, 40 Cal.4th at p. 902.) The

court noted the minute order mailed by the clerk was an appealable order, but it was not

file-stamped and thus did not comply with rule 8.104(a)(1). The court observed, "courts

have consistently held that the required 'document entitled " ' "Notice of Entry" ' "

12 [Citation] must bear precisely that title, and that the 'file-stamped copy of the judgment'

[Citation] must truly be file stamped." (Id. at p. 903). The Supreme Court concluded

rule 8.104(a)(1) requires a "single, self-sufficient document satisfying all of the rule's

conditions . . . ." (Id. at p. 903.)

In Laraway v. Pasadena Unified School Dist. (2002) 98 Cal.App.4th 579,

(Laraway), the trial court entered an " 'order regarding petitioner's motion for writ of

mandamus, prohibition, injunctive and declaratory relief' " on August 23, 2000. (Id. at p.

581.) The order completely resolved all of the issues and did not contemplate nor direct

the preparation of any further order or judgment. (Id. at p. 582.) It was not clear whether

either party was served this order until January 2001. (Ibid.) On January 29, 2001, the

court filed its judgment on the petition, which set forth the same rulings as the initial

order and included a provision that judgment was entered against the petitioner. (Ibid.)

There was no notice of entry on the August 23, 2000 order; thus subdivision

(a)(1)(C) of rule 8.104 applied, and the last date either party could file a notice of appeal

was 180 days after August 23. (Laraway, supra, 98 Cal.App.4th at p. 582.) The Court of

Appeal held the August 23 order was an appealable order because "it contemplated no

further action, such as the preparation of another order or judgment [Citation], and it

disposed of all issues between all parties." (Id. at p. 583.) The court further noted, "once

a judgment or appealable order has been entered, that the time to appeal can be restarted

or extended by the filing of a subsequent judgment or appealable order making the same

decision." (Ibid.) Thus, the judgment entered into on January 29 did not restart the clock

for the parties' period to file a notice of appeal. (Ibid.) the trial court sustained a demurrer to plaintiff's third amended complaint without leave to

amend. (Id. at p. 914.) The defendant served plaintiff with a "Notice of Ruling" that the

demurrer was sustained without leave to amend. (Ibid.) The clerk mailed a notice of

filing of an order of dismissal to both parties. (Ibid.) The court ruled the defendant's

notice of ruling did not commence the 60-day filing period because it was not a notice of

entry of judgment; it "merely advised plaintiff that the demurrer had been sustained

without leave to amend." (Id. at p. 915.)

C. Analysis

The period to file a notice of appeal begins with the earliest of two possible dates:

60 days the appealing party is served with a "Notice of Entry" of a judgment or

appealable order, or 180 days after the entry of judgment. For the University to have

commenced the shorter 60-day filing period, they needed to serve Yang with a document

entitled "Notice of Entry" of a judgment (or appealable order), or a file-stamped copy of

the judgment.

The University's "Notice of Entry of Ruling" is not a Notice of Entry of judgment.

In the Superior Court's Register of Actions Notice, Respondent's notice is documented as

a "Notice of Ruling." "A notice of ruling is not an order; an order is a document which

contains a direction by the court that a party take or refrain from action, or that certain

relief is granted or not granted . . . and which is either entered in the court's permanent

minutes or signed by the judge and stamped 'filed.' " (Shpiller v. Harry C's Redlands

(1993) 13 Cal.App.4th 1177, 1179.) Like Call, the University provided a notice of ruling

14 that merely advised Yang the court confirmed its tentative ruling at the hearing. The

court's finalization of the tentative ruling at a hearing is not a judgment or an appealable

order. It did not direct a party to take or refrain from action, nor did it grant or deny

relief.

The University relies on the minute order as the appealable order that was entered

after the hearing. The minute order would be an appealable order, as it specifically

denies Yang's petition and resolves all the issues between the parties. However, the

University was not providing notice of the minute order. The University admits in its

brief that it was unaware the court had issued a formal minute order when it prepared its

Notice of Entry. Thus, the University's "Notice of Entry of Ruling" was with respect to

the tentative ruling and the court's finalization of it at the hearing, neither of which are

judgments or appealable orders. Therefore, it was not a notice of entry of judgment as

required by rule 8.104(a)(1).

Moreover, the University's reliance on Laraway is misplaced. First, that case does

not deal with the adequacy of a notice of entry of judgment or its compliance with rule

8.104(a). Second, while, similar to Laraway, the judge here did enter a minute order that

fully disposed of all issues, the University did not provide that minute order in its notice.

There is nothing in the record or briefs that indicate whether either party served, or was

served, with a notice of entry of the formal minute order. While the minute order here

might have constituted an appealable order under Laraway, the University gave Yang no

notice of entry of the minute order, or a file-stamped copy of it, that would start the 60-

15 day filing period. Thus, the minute order is subject to the 180-day filing period starting

June 21, 2012, within which Yang filed her notice of appeal.

We conclude Yang's appeal is therefore timely. The University's "Notice of Entry

of Ruling" was not a notice of entry of judgment as contemplated by rule 8.104(a)(1).

The attached tentative ruling was not a judgment or appealable order, nor was it even file-

stamped. While the minute order might have constituted an appealable order, the

University did not give a notice of entry of that order, nor did it provide Yang with a file-

stamped copy of that order.

II. MERITS

A. Standard of Review

"In a mandamus action arising under Code of Civil Procedure section 1085,

judicial review is limited to an examination of the proceedings before the agency to

determine whether its actions have been arbitrary or capricious, entirely lacking in

evidentiary support, or whether it failed to follow proper procedures or failed to give

notice as required by law. [Citations.] [¶] In determining whether evidentiary support is

present in a traditional mandamus action, the applicable standard of review is the

substantial evidence test. [Citations.] [¶] The court may not reweigh the evidence and

must view the evidence in the light most favorable to the [agency's] actions and indulge

all reasonable inferences in support thereof. [Citation.] [¶] Substantial evidence has been

defined as relevant evidence that a reasonable mind might accept as adequate support for

a conclusion. [Citation.] A presumption exists that an administrative action was

supported by substantial evidence. [Citation.] The burden is on the appellant to show

16 there is no substantial evidence whatsoever to support the findings of the [agency]."

(Taylor Bus Services, Inc. v. San Diego Bd. of Education (1987) 195 Cal.App.3d 1331,

1340-1341.) "[I]f reasonable minds may disagree as to the wisdom of the agency's

action, its determination must be upheld." (Agosto v. Board ofTrustees of Grossmont-

Cuyamaca College Dist. (2010) 189 Cal.App.4th 330, 336.)

Moreover, courts rarely intervene in a university's academic affairs. (See Paulsen

v. Golden Gate Univ. (1979) 25 Cal.3d 803, 808; Wong v. Regents of the Univ. of Cal.

(1971) 15 Cal.App.3d 823, 830 (Wong).) In particular, "in actions challenging the

academic decision of a private university regarding a student's qualifications for a degree,

[courts] exercise a highly deferential and limited standard of review." (Banks v.

Dominican College (1995) 35 Cal.App.4th 1545, 1551.) Courts give such deference

because "[u]niversity faculties must have the widest range of discretion in making

judgments as to the academic performance of students." (Board of Curators v. Horowitz

(1978) 435 U.S. 78, 96, fn. 6.)

" '[T]he rule of judicial nonintervention in scholastic affairs is particularly

applicable in the case of a medical school. A medical school must be the judge of the

qualifications of its students to be granted a degree; Courts are not supposed to be learned

in medicine and are not qualified to pass opinion as to the attainments of a student in

medicine.' " (Wong, supra, 15 Cal.App.3d at pp. 830-831, citing Connelly v. Univ. of

Vermont and State Agr. College (1965) 244 F.Supp. 156, 160-161.)

17 B. Analysis

1. Lack of PEF

Yang asserts (1) filling out a PEF to document a student's problems is mandatory;

(2) a PEF must be given to a student for any deficiency, not just a professionalism-related

issue; (3) no one ever filled out a PEF for her; and (4) dismissing her for problems that

should have been first identified in a PEF violates School policy and thus justifies writ

relief. We reject these contentions.

Assuming that a PEF is mandatory for repeated or serious problems, it only

applies to a student's deficiencies in professionalism, not academics. Indeed, the

applicable policy is titled "Policy on Evaluation of Professionalism." (Italics added.)

The examples of improper behaviors that justify a PEF are not academic, but

professional. They include such items as tardiness to clinical rotations, lack of respect for

patient confidentiality or autonomy, abusing one's power with colleagues or patients,

rudeness, not responding to instructor feedback, and lack of empathy for patients. The

four categories identified on the PEF itself are behavioral in nature, not academic:

"Reliability and Responsibility"; "Self Improvement and Adaptability"; "Relationships

with Patients, Peers, Faculty and Staff"; and "Upholding the Oath of a Pharmacist and

University Policies and Procedures."

Moreover, academic problems such as failing grades are not ignored by the School

if no PEF is required for such deficiencies. Such problems are identified on a student's

evaluation, as they were on multiple occasions in Yang's case, or discussed directly with

the student. The majority of the significant problems identified by School faculty about

18 Yang were academic in nature. Thus a PEF was not required to be filled out for those

types of deficiencies.

As we have discussed, ante, and the trial court found, the "record contains ample

evidentiary support for the School's decision to dismiss [Yang] based on her academic

performance alone." What prompted the Committee hearing was Yang's two failing,

non-remediated grades in required APPEs. The November 2011 Committee meeting

focused on "Anna Yang's academic progress from the P1-P4 years" and her "poor

academic performance . . . ." While the Committee mentioned her "[c]ontinued pattern of

lack of professionalism despite counseling," the primary issues identified by the

Committee as "[leading] to the decision of dismissal" were Yang's academic problems,

including: (1) "[a] history and pattern of poor academic performance"; including two

failed classroom/didactic courses and two failed APPEs; (2) "[a] fundamental lack of

clinical and medication knowledge leading to the concern for patient safety"; and (3)

"gross errors" in describing "basic and extremely common drugs[.]" Moreover, Yang's

formal letter of dismissal also focuses on academic problems, not professionalism.

In sum, the School dismissed Yang primarily for academic, not professionalism,

reasons. Because a PEF is not meant to address academic problems, the School's failure

to give Yang a PEF is of no moment.

2. The School's alleged failure to follow it procedures

Yang asserts that (1) the School requires two non-remediated failing grades in

required courses during the same year before dismissal is possible; (2) she only had one

failed grade after remediating the failed Scripps La Jolla Hospital APPE by passing the

19 Rady Children's Hospital APPE; and (3) therefore, the entire dismissal process was

improper. We reject this contention.

As we have discussed, ante, Yang failed two required APPEs in 2011: an acute

care rotation (at Scripps La Jolla Hospital) and an ambulatory care rotation (at the UCSD

Moores Cancer Center). She asserts that she remediated her failed acute care APPE at

Scripps La Jolla Hospital by passing an acute care APPE at Rady Children's Hospital in

the next academic term. This contention is unavailing.

As the court found, under the School's grading policy, "an F grade remain[s] on

the transcript." Thus, Yang had one F on her transcript from her failed Scripps La Jolla

Hospital APPE, whether or not she properly remediated her failing APPE grade. When

she also earned an F from the required UCSD Moores Cancer Center APPE in the same

year, Yang became eligible for dismissal.

Yang provides no support for the proposition that "for academic purposes" her

Scripps La Jolla Hospital APPE grade was erased in favor of her Rady Children's

Hospital APPE grade. The School's APPE progression policy states: "If a student

receives an F or U grade for a specific APPE, he/she will be allowed to continue their

remaining, scheduled APPEs. Upon completion of the last scheduled APPE, the student

will repeat and pass the APPE where an F or U grade was received or complete and pass

an equivalent APPE experience." (Italics added.)

Thus, as the trial court found, repeating and passing a failed APPE (or completing

and passing an equivalent APPE) can only occur after all other remaining APPEs are

completed.

20 It is true that this rule is different than for classroom/didactic classes, where an F

must be remediated more quickly. That is, for "Repeating Failed Coursework," the

student must take and pass "the course the next time it is offered" to remediate the F.

However, the School's decision to treat failing grades in APPEs differently than failing

grades in classroom/didactic courses is an academic decision, and we may not intervene

in that decision unless the School has acted "arbitrarily or in bad faith." (Paulsen, supra,

25 Cal.3d at p. 808; Wong, supra, 15 Cal.App.3d at p. 830.)

As we have discussed, this difference in treatment is necessary given the difficulty

of scheduling APPEs. The School exercised its academic judgment to conclude that it

would be disruptive to students, staff, instructors, clinical sites, and pharmacies to require

immediate remediation of a failed APPE.

Yang concedes she did not complete all of her APPEs. When she was dismissed

from the School, she had three more APPEs to complete. Thus, her claimed

"remediation" of her failed grade in the Scripps La Jolla Hospital APPE through the Rady

Children's Hospital APPE did not cure that failed grade, because it occurred before

"completion of the last scheduled APPE." Accordingly, Yang still had two Fs in the

same year at the time of the November 2011 Committee hearing and she was thus

properly subject to dismissal.

Yang asserts that the School would not let her complete her other APPEs, but

instead dismissed her prematurely, and so she had no chance to remediate. However, the

APPE Progression Policy must be read in conjunction with the School's Bylaws.

Pursuant to the APPE Progression Policy, the School let Yang continue taking

21 previously-scheduled APPEs even after her first F. But under the Bylaws, once she failed

her second APPE in the same year, she became eligible for dismissal. The court

therefore correctly found that the fact Yang "would have had an opportunity to remediate

at least one failing grade after she completed the seven APPE courses does not mean she

could not be dismissed."

As we have discussed, ante, remediation, under School policy, could only occur at

the end of all scheduled clinical rotations. The School followed its APPE-specific policy

in determining whether Yang was subject to academic dismissal. The court's denial of

Yang's petition was thus based on substantial evidence.

DISPOSITION

The judgment is affirmed. The University shall recover its costs on appeal.

NARES, J.

WE CONCUR:

BENKE, Acting P. J.

McINTYRE, J.

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