Doe v. Atkinson

Filed 10/19/23
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

JOHN DOE,
Plaintiff and Appellant,
A166145
v.
SHERI ATKINSON et al., (Alameda County
Super. Ct. No. RG21103437)
Defendants and Respondents.

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

1
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

1 We draw much of our discussion of the underlying facts and the

administrative proceeding from the trial court’s order granting the writ.

2
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

3
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

2 “Title IX of the Education Amendments of 1972 (20 U.S.C. § 1681 et

seq.) is a federal civil rights law that prohibits discrimination based on
gender in education programs or activities that receive federal funding. (See
34 C.F.R. § 106.1 et seq. (2019).)” (Doe v. Occidental College (2019)
40 Cal.App.5th 208, 217, fn. 2.) The law affects federally funded universities’
consideration of sexual misconduct complaints. (See Boermeester v. Carry
(2023) 15 Cal.5th 72, 78.)

4
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

5
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 (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 significant-benefit requirement). (§ 1021.5.)
Thus, we need not consider whether he met the other requirements for an
award under the statute.

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 Section 1021.5, “ ‘a codification of the “private attorney general”
doctrine, recognizes that “privately initiated lawsuits are often essential to
the effectuation of the fundamental public policies embodied in constitutional
or statutory provisions, and that, without some mechanism authorizing the
award of attorney fees, private actions to enforce such important public
policies will as a practical matter frequently be infeasible.” ’ ” (McCormick v.
Public Employees’ Retirement System (2023) 90 Cal.App.5th 996, 1003
(McCormick).) Thus, “ ‘ “ ‘the fundamental objective of the doctrine is to
encourage suits enforcing important public policies by providing substantial
attorney fees to successful litigants in such cases.’ ” ’ ” (Ibid.)
Section 1021.5 authorizes a court to “award attorneys’ fees to a
successful party against one or more opposing parties in any action which has
resulted in the enforcement of an important right affecting the public interest
if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been
conferred on the general public or a large class of persons, (b) the necessity
and financial burden of private enforcement . . . are such as to make the
award appropriate, and (c) such fees should not in the interest of justice be
paid out of the recovery, if any.” As the party seeking an award, Doe has the
burden to show he meets all of section 1021.5’s requirements. (McCormick,
supra, 90 Cal.App.5th at p. 1004.)
Whether the trial court erred by denying attorney fees under
section 1021.5 “implicates ‘a mixed standard of review.’ ” (Friends of Spring
Street v. Nevada City (2019) 33 Cal.App.5th 1092, 1107.) First, we review de
novo “ ‘whether the . . . court applied the proper legal standards,’ paying
‘particular attention to the . . . stated reasons for denying fees.’ ” (Doe v.
Westmont College (2021) 60 Cal.App.5th 753, 763 (Westmont College); Friends
of Spring Street, at p. 1107.) Second, we review for an abuse of discretion

7
whether the court’s “ ‘application [of the proper legal standards] to the facts
of th[e] case is within the range of discretion conferred upon the trial courts
under section 1021.5, read in light of the purposes and policy of the statute.’ ”
(Friends of Spring Street, at p. 1107.)
For purposes of this appeal, we need address only the significant-
benefit requirement. In analyzing this requirement, a court should perform
“a realistic assessment, in light of all the pertinent circumstances, of the
gains which have resulted in a particular case.” (Woodland Hills Residents
Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 939–940.) “The extent of [the
significant] benefit ‘ “ ‘need not be great,’ ” ’ ‘[n]or is it required that the class
of persons benefited be “ ‘readily ascertainable.’ ” ’ . . . While section 1021.5
does not permit awards ‘for litigants motivated by their own interests who
coincidentally serve the public’ [citation], ‘fees may not be denied merely
because the primary effect of the litigation was to benefit the individual
rather than the public.’ ” (Westmont College, supra, 60 Cal.App.5th at
pp. 764–765.)
Initially, we address Doe’s claim that the trial court applied the wrong
legal standard because it “fixat[ed] . . . on [his] individual interest” to
conclude that he did not meet the significant-benefit requirement. A
plaintiff’s “subjective motivations in pursuing the litigation are simply not
relevant” to whether the action conferred the requisite benefit. (City of
Maywood v. Los Angeles Unified School Dist. (2012) 208 Cal.App.4th 362,
429, fn. 32; accord Friends of Spring Street v. Nevada City, supra,
33 Cal.App.5th at p. 1110.) According to Doe, the court contravened this
principle by citing case law “for the proposition that [he] needed to be an
entirely ‘disinterested’ party ‘seeking to vindicate the rights of college
students.’ ” The court said no such thing. Rather, after stating that Doe had

8
not helped change the law or obtained far-reaching relief, the court continued
that “[t]his case was also not a disinterested one seeking to vindicate the
rights of college students.” (Italics added.) Thus, the court was merely giving
another reason that the action did not convey a significant benefit, not
holding that Doe had to be disinterested to qualify for attorney fees under
section 1021.5.
Doe also claims the trial court inaccurately assessed the effects of this
litigation by “focus[ing] on its determination that ‘[he did not] help[] strike
down a statute violating the rights of college students’ ” and “believ[ing] that
[he] failed ‘to obtain relief beyond his own “unique factual circumstances.” ’ ”
According to him, the action enforced students’ “right to due process, fair
university administrative procedures, and compliance with the University of
California’s systemwide policies and procedures,” thereby “extend[ing] a
significant benefit to all 294,000 UC students[,] any of whom could face
accusations that lead to discipline.”3
The trial court did not err in assessing the impact of the relief it
granted. As respondents point out, the court rejected Doe’s claim that
UC Davis’s procedures violated due process in various respects, and it
granted relief only because the particular sanction imposed on Doe was
objectively unreasonable under the circumstances. True, in its order the
court referred to a previous case in which it determined that the Regents had

3 Doe also argues that this litigation conferred a significant benefit on

University of California students and the general public based on his motion
to enforce respondents’ compliance with the writ, whose outcome “set a clear
standard for colleges and universities that have similarly disregarded court
orders.” He does not cite any authority to support this argument, and we are
not persuaded that successful enforcement of a disposition that did not
otherwise confer a significant benefit is sufficient to satisfy the significant-
benefit requirement.

9
fallen short of justifying a particular sanction and “wonder[ed] whether the
Regents can avoid repeating the errors made here by modifying the hearing
procedure.” But the writ directed only that the Regents “set aside the
administrative sanction imposed against [Doe] forthwith,” not that they
formally change any of their Title IX procedures.
Thus, the trial court’s ruling is hardly “a ringing declaration of the
rights of all” University of California students. (Pacific Legal Foundation v.
California Coastal Com. (1982) 33 Cal.3d 158, 167; Ryan v. California
Interscholastic Federation (2001) 94 Cal.App.4th 1033, 1045.) Although
litigation that enforces existing legal duties may confer a significant benefit,
it is insufficient, standing alone, that the ruling here enforced respondents’
obligation to impose a reasonable sanction on disciplined students. (See
McCormick, supra, 90 Cal.App.5th at pp. 1006–1007.) In fact, the grant of
relief “under the limited factual circumstances shown here” primarily
benefited Doe, by undoing his suspension. (Pacific Legal Foundation, at
p. 167.) As such, it is more akin to grants of relief premised on the lack of
evidence supporting a challenged decision, which generally do not satisfy the
significant-benefit requirement, than to those premised on broader violations
of constitutional or statutory rights. (See, e.g., Roybal v. Governing Bd. of
Salinas City Elementary School Dist. (2008) 159 Cal.App.4th 1143, 1149–
1150 [writ based on “failure of proof” justifying plaintiffs’ termination did not
confer significant benefit on other employees]; Ryan, at pp. 1045–1046 [no
significant benefit where “case was simply a substantial evidence matter
involving [plaintiff’s] personal interests”].)
Because of the limited basis on which Doe obtained relief, this case is
distinguishable from Westmont College, another decision addressing
section 1021.5 in the Title IX context. There, a student obtained an

10
administrative writ overturning his college’s determination that he
committed sexual assault, because the trial court concluded the college did
not give him a fair hearing. (Westmont College, supra, 60 Cal.App.5th at
p. 759.) The college appealed, and the Second District Court of Appeal
“affirmed the judgment in a published opinion, agreeing that [the college]
failed to provide [the student] with a fair hearing.” (Ibid.) The trial court
denied the student’s motion for attorney fees under section 1021.5, and in a
subsequent opinion the Second District vacated the order. (Westmont College,
at pp. 762, 768.) In doing so, the appellate court concluded the student met
the significant-benefit requirement in part because he “helped to ensure that
[the college] complies with its own fair hearing policies and procedures,”
which extended benefits to not just the student but also “sexual assault
victims, those accused of such assaults, and the personnel who investigate
and adjudicate the accusations.” 4 (Id. at p. 765.)
Here, in contrast, the group of people other than Doe who could benefit
from the trial court’s grant of writ relief is much smaller. At best, the court’s
ruling helped ensure that University of California schools will impose
reasonable sanctions in future Title IX cases. That might help students
found to have violated policies against sexual assault and harassment, but we
do not see how it would benefit all students accused of such conduct, much
less victims or school personnel. Given the relatively small number of
students potentially affected by how the appropriate sanction is assessed, not
to mention the necessarily fact-based nature of that assessment, we cannot

4 Westmont College also relied on the fact that the student’s defense of

the judgment in his favor resulted in a prior published opinion, “which ‘alone
support[ed] the conclusion that the result was of significant statewide public
interest.’ ” (Westmont College, supra, 60 Cal.App.5th at p. 765.) Of course,
the same is not true here.

11
say the trial court abused its discretion by concluding that this litigation did
not meet the significant-benefit requirement.
B. Remand Is Required for the Trial Court to Reconsider Whether
Doe Is Entitled to Attorney Fees Under Section 800.
Doe also claims the trial court erred by denying attorney fees under
section 800, which applies when a party successfully challenges an
administrative decision that “was the result of arbitrary or capricious action
or conduct by a public entity or an officer thereof.” (§ 800, subd. (a).) We
conclude the court applied an incorrect legal standard in ruling, and we
therefore remand for it to reconsider under the proper standard whether an
award under section 800 is appropriate.
Under section 800, subdivision (a), if a plaintiff prevails “[i]n any civil
action to appeal or review the award, finding, or other determination of any
administrative proceeding under this code or under any other provision of
state law” and “it is shown that the award, finding, or other determination of
the proceeding was the result of arbitrary or capricious action or conduct by a
public entity or an officer thereof in [the officer’s] official capacity,” the
plaintiff “may collect from the public entity reasonable attorney’s fees . . . not
to exceed . . . $7,500 . . . if [the plaintiff] is personally obligated to pay the fees
in addition to any other relief granted or other costs awarded.”
“ ‘The determination of whether an action is arbitrary or capricious is
essentially one of fact,’ ” which we review for an abuse of discretion. (Halaco
Engineering Co. v. South Central Coast Regional Com. (1986) 42 Cal.3d 52,
79 (Halaco).) But “[a]ny exercise of discretion must rest on correct legal
premises, . . . and in that respect our review is de novo.” (Minick v. City of
Petaluma (2016) 3 Cal.App.5th 15, 25; see Robinson v City of Chowchilla
(2011) 202 Cal.App.4th 382, 391 [applying incorrect legal standard
necessarily constitutes abuse of discretion].) In particular, to the extent “the

12
propriety of the award [of attorney fees] turns on an issue of statutory
interpretation . . . , the issue is reviewed de novo as a question of law.”
(Department of Fair Employment & Housing v. Cathy’s Creations, Inc. (2020)
54 Cal.App.5th 404, 412.)
In Kreutzer, the primary decision on which the trial court relied, the
Fourth District Court of Appeal stated that a prevailing party is entitled to
attorney fees under section 800 “only if the actions of a public entity or
official were wholly arbitrary or capricious.” (Kreutzer, supra, 153 Cal.App.3d
at p. 78, italics added.) The decision then explained that “[t]he phrase
‘arbitrary or capricious’ encompasses conduct not supported by a fair or
substantial reason [citation], a stubborn insistence on following unauthorized
conduct [citation], or a bad faith legal dispute [citation].” (Ibid.) Kreutzer’s
characterization of the standard has been quoted numerous times in cases
addressing section 800, including by our state Supreme Court. (E.g., Halaco,
supra, 42 Cal.3d at p. 79; Lafayette Bollinger Development LLC v. Town of
Moraga (2023) 93 Cal.App.5th 752, 791; Reis v. Biggs Unified School Dist.
(2005) 126 Cal.App.4th 809, 823.)
We agree with Doe that the trial court improperly denied attorney fees
on the basis that “[r]espondents’ investigation was not wholly arbitrary and
capricious,” since it generally complied with due process. To begin with, we
are not convinced that Kreutzer was correct when it stated that official
conduct must be “wholly arbitrary or capricious” to support an award under
section 800. (Kreutzer, supra, 153 Cal.App.3d at p. 78.) The statute itself
states that the administrative decision must be “the result of arbitrary or
capricious action or conduct” (§ 800, subd. (a)), and Kreutzer cited no
authority supporting its insertion of the word “wholly.” Given Kreutzer’s
later observation that even a “clearly erroneous” decision is not “arbitrary or

13
capricious,” the word “wholly” may have been meant merely to emphasize
that the official conduct must be unreasonable, not just incorrect. (Kreutzer,
at p. 78.)
But even if “wholly arbitrary or capricious” is the correct legal
standard, the trial court misapplied it here. Whatever the phrase’s precise
meaning, it does not mean that all the official actions leading to the
administrative “award, finding, or other determination” must be arbitrary or
capricious. (§ 800, subd. (a).) Certainly, nothing in section 800’s language
supports such a principle, as the statute requires only that the challenged
determination—here, the decision to suspend Doe for a year—be “the result
of arbitrary or capricious action or conduct.” (Ibid.) Otherwise, attorney fees
would almost never be warranted under section 800, since they could be
denied so long as some aspect of the official decisionmaking process was
reasonable or rational. As a result, the court erred by concluding that even
though the penalty imposed on Doe was arbitrary and lacked justification, it
was not the result of wholly arbitrary and capricious conduct because the
procedures respondents followed were generally lawful.
Usually, when a trial court applies the incorrect legal standard in
exercising its discretion, the appropriate disposition is to remand for the
court to apply the proper standard. (See, e.g., Westmont College, supra,
60 Cal.App.5th at p. 768.) Here, the rulings granting writ relief and denying
attorney fees contain language suggesting the trial court effectively found
that the one-year suspension resulted from arbitrary or capricious action,
including its statements that the sanction was “objectively unreasonable” and
“in a sense, arbitrary,” because of “[t]he lack of reasoning or fact-finding to
support [it].” (See Kreutzer, supra, 153 Cal.App.3d at p. 78.) Nonetheless, we
decline to direct the court to award fees under section 800 or, as Doe

14
suggests, make an award ourselves. Since whether official conduct is
arbitrary or capricious is a fact determination, and in any case the court has
not yet evaluated Doe’s attorneys’ billing records, we conclude the better
course is to remand for the court to reevaluate Doe’s entitlement to attorney
fees under section 800.
III.
DISPOSITION
The August 15, 2022 order denying attorney fees is affirmed in part
and vacated in part. The matter is remanded to the trial court with
directions to reconsider whether Doe is entitled to attorney fees under
Government Code section 800 and, if so, in what amount. The parties shall
bear their own costs on appeal.

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 _________________________
Humes, P.J.

WE CONCUR:

_________________________
Margulies, J.

_________________________
Getty, J.*

*Judge of the Superior Court of the County of Solano, assigned by the
Chief Justice pursuant to article VI, section 6 of the California Constitution.

Doe v. Atkinson et al. A166145

16
Trial Court:

Superior Court of the County of Alameda

Trial Judge:

Hon. Michael M. Markman

Counsel:

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

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

Doe v. Atkinson et al. A166145

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