John Doe v. Atkinson

96 Cal.App.5th 667

314 Cal.Rptr.3d 480

John DOE, Plaintiff and Appellant,

v.Sheri ATKINSON et al., Defendants and Respondents.

A166145

Court of Appeal, First District, Division 1, California.

Filed October 19, 2023

Hathaway Parker, Mark M. Hathaway, Jenna E. Parker, Los Angeles, for Plaintiff and Appellant.

Quarles & Brady LLP, Sandra L. McDonough, San Diego, Joanne Alnajjar Buser, for Defendants and Respondents.

Humes, P.J. John Doe was suspended for a year from the University of California, Davis (UC Davis), for violating its policy against sexual violence and harassment. He challenged the decision by filing a petition for a writ of administrative mandate against the Regents of the University of California (Regents) and Dr. Sheri Atkinson, Ed.D., the associate vice chancellor of student affairs at UC Davis (collectively, respondents).

The trial court issued a writ overturning the one-year suspension, concluding that it was "objectively unreasonable" in light of Doe's conduct.

Doe then unsuccessfully moved for attorney fees under Code of Civil Procedure section 1021.5 ( section 1021.5 ) and Government Code section 800 ( section 800 ). In this appeal from the order denying attorney fees, he claims the trial court erred by determining he was not entitled to an award under either statute.

We conclude the trial court properly denied attorney fees under section 1021.5 on the basis that the litigation did not confer "a significant benefit ... on the general public or a large class of persons." But we also conclude the court applied an incorrect legal standard in denying fees under section 800, which authorizes an award of up to $7,500 if the challenged administrative determination "was the result of arbitrary or capricious action or conduct by a public entity or an officer thereof." In doing so, we hold that—contrary to the court's supposition—all aspects of an administrative proceeding need not be arbitrary or capricious to justify attorney fees under section 800. Thus, we affirm the denial of fees under section 1021.5, vacate the denial of fees under section 800, and remand for the court to reconsider whether respondents engaged in sufficient arbitrary or capricious conduct to warrant a section 800 award.

I.

FACTUAL AND PROCEDURAL BACKGROUND

From November 2019 to June 2020, Doe, a junior at UC Davis, had a consensual sexual relationship with Jane Roe, a senior.¹ In November 2019, while the two were having sex in Doe's room, Doe made a one-second video recording of his own face. Roe "saw a flash" and asked Doe to show her his camera roll, at which point she saw a video file. She did not want to see the video and asked him to delete it, which he did.

About nine months after the incident, Roe made a formal complaint against Doe. Doe initially lied to the UC Davis investigator by claiming he was "checking his phone during sex because he was getting a notification on it," but he ultimately admitted to taking the one-second recording of himself so he could "see what he looked like during the sex act." The recording was never produced.

The investigator determined that Doe had violated UC Davis's Sexual Violence and Sexual Harassment Policy by recording video "depicting [a] person's nudity or sexual acts in a place where that person has a reasonable expectation of privacy" without consent. The investigator also concluded that Doe had violated another UC Davis policy that more generally bars nonconsensual recordings that violate another person's privacy.

In February 2021, UC Davis notified Doe of its preliminary determination to suspend him for one year. He sought a formal hearing, which occurred that April. After hearing testimony from several witnesses, including Doe and Roe, the hearing officer concluded by a preponderance of the evidence that " ‘[Doe] made a video recording depicting [Roe's] sexual acts, without [her] affirmative consent, and in a location where [she] had a reasonable expectation of privacy.’ " Based on the hearing officer's decision, UC Davis reaffirmed that a one-year suspension was appropriate.

Doe filed an internal appeal. At this point, Dr. Atkinson became involved. She "rejected the appeal ... but adjusted Doe's suspension" so that it would run from summer 2021 through spring 2022, meaning his coursework from the 2021 spring quarter could "count toward his degree." Since Doe was set to graduate in spring 2021, this "result[ed] in withholding his degree until" spring 2022.

In June 2021, shortly after his internal appeal was denied, Doe filed a petition for a writ of administrative mandate under Code of Civil Procedure section 1094.5 seeking to overturn the findings and sanction against him. The trial court found that UC Davis's Title IX procedure was "consistent with due process standards" and did not violate Doe's rights.² But it agreed with Doe that respondents abused their discretion by imposing a one-year suspension because the sanction was "objectively excessive and punitive."

Specifically, the trial court concluded that UC Davis's "rationale for its imposition of penalties fell short in this case." None of the factors under UC Davis policy that bore on the appropriate sanction weighed against Doe, given the lack of evidence that he even captured Roe on video, either visually or audibly; that he shared the video with anyone; that he was violent or took advantage of her; or that he acted with ill intent. Rather, his credibility appeared to be "the one key factor that led to his extended suspension." Moreover, the suspension could not be justified on the grounds of protecting Roe, who had already graduated by the time the hearing occurred. Finally, there was no indication of "why the student in this case might be suspended for a year while a student in another might be suspended for two years or a student in a different case might not be suspended at all." Noting its findings in a prior case involving the Regents, the court stated that they "can and must do more to explain in the administrative record of their Title IX cases why a particular form of discipline is being imposed and why that sanction is not disproportionate when measured against the sanction imposed in other cases."

Accordingly, in February 2022, the trial court entered judgment in Doe's favor and issued a peremptory writ of administrative mandate directing the Regents to "set aside the administrative sanction imposed against [Doe] forthwith." The following month, respondents filed a return stating that Dr. Atkinson had "directed the [UC Davis] Registrar ... to remove any reference to the one-year suspension from Doe's academic transcript and confirmed that removal was completed." Then, as set forth in a letter from Dr. Atkinson to Doe, UC Davis imposed a shorter suspension, from summer 2021 through fall 2021.

In April 2022, Doe moved to enforce the writ, claiming that respondents violated the trial court's order by imposing the new sanction. He pointed out that the shorter suspension would still make his graduation date June 2022, not June 2021, "leav[ing] a year-long gap on his academic transcript during which [he] did not take any classes, closely resembling a suspension." Respondents initially opposed the motion, but after meeting and conferring with Doe, they agreed to "(i) vacate the reduced five-month suspension sanction, (ii) ... not ... further sanction [Doe], and (iii) retroactively issue [his] degree to June 2021." In May 2022, based on the parties’ stipulation, the trial court issued an order requiring respondents to do the same.

Shortly afterward, Doe filed a motion for attorney fees of $142,387.48 under section 1021.5 and $7,500 under section 800. Respondents opposed the motion, and the trial court denied it. As to the section 1021.5 request, the court determined that this lawsuit satisfied "the preliminary requirement of ... ‘enforcement of an important right affecting the public interest’ " but "none of the other [statutory] requirements." In particular, the lawsuit did not confer a significant benefit on the public or a large class of persons because it did not correct an overarching UC Davis policy or "ongoing pattern of abuse." The action was made necessary by Doe's "own questionable behavior" and was "not a disinterested one seeking to vindicate the rights of college students." Doe also failed to show that the necessity and burden of private enforcement made attorney fees appropriate, because he did not present any evidence showing the action " ‘transcended [his] financial interests and imposed a financial burden disproportionate to [his] individual stake in the matter.’ "

As to the section 800 request, the trial court concluded that although the original suspension "lacked sufficient findings to support it and was objectively unduly punitive," it did not "rise[ ] to the level of misconduct required by section 800." In reaching its conclusion, the court relied on case law stating that the official conduct must be "wholly arbitrary or capricious." ( Kreutzer v. County of San Diego (1984) 153 Cal.App.3d 62, 78, 200 Cal.Rptr. 322 ( Kreutzer ).) The court acknowledged that "[t]he lack of reasoning or fact-finding to support the penalty imposed on [Doe] was, in a sense, arbitrary," but it reiterated that "the procedure used by UC Davis in this case was ‘generally appropriate’ and complied with recent California case law concerning due process in student discipline cases under Title IX." Thus, the court concluded that "[r]espondents’ investigation was not wholly arbitrary and capricious" under Kreutzer .

II.

DISCUSSION

A. Doe Is Not Entitled to Attorney Fees Under Section 1021.5.

Doe claims the trial court erred by denying his request for attorney fees under section 1021.5. We conclude the court properly denied fees on the basis that Doe failed to meet the statutory requirement that "a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons" (the...