Filed 6/5/20; Certified for Publication 6/29/20




IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                    SECOND APPELLATE DISTRICT

                                  DIVISION SIX



JOHN DOE,                                             2d Civil No. B293153
                                                  (Super. Ct. No. 16CV04758)
     Plaintiff and Appellant,                       (Santa Barbara County)

v.

THE REGENTS OF THE
UNIVERSITY OF
CALIFORNIA,

     Defendant and Respondent.



            John Doe (Doe) was admitted as a freshman student
to the University of California at Santa Barbara (UCSB). Before
he even arrived in Santa Barbara, UCSB placed him on interim
suspension pending its investigation into an allegation of dating-
relationship violence. UCSB then delayed completion of the
investigation, in violation of its own written policies.
              Doe brought this action against the Regents of the
University of California (Regents). The superior court
preliminarily enjoined the interim suspension pending
completion of the administrative proceedings. Ultimately, Doe
was exonerated in the administrative proceedings. Over his
objection, the superior court then dismissed his action as moot.
The court denied Doe’s motion for attorney’s fees under Code of
Civil Procedure section 1021.5, reasoning that he had failed to
show the litigation conferred “a significant benefit . . . on the
general public or a large class of persons.” (Code Civ. Proc.,
§ 1021.5.) 1
              Doe appeals from the judgment of dismissal and the
postjudgment order denying his motion for attorney’s fees. We
affirm the order of dismissal. We conclude Doe satisfied the
criteria for an award of fees under section 1021.5. We reverse the
denial of the fee motion and remand for a determination of the
amount to be awarded.
                 Factual and Procedural Background
              At the age of 17, Doe was admitted to UCSB. He was
assigned a dormitory and was registered to begin classes on
September 23, 2016. On August 13, 2016, he was involved in a
verbal argument with his then 17-year-old girlfriend, Jane, after
he discovered she had hacked into his social media accounts.
Both Doe and Jane resided in San Diego County, and the incident
occurred in the City of San Diego. Jane was not a student at
UCSB. When Doe observed Jane videotaping their argument

      1 All statutory references are to the Code of Civil
Procedure unless otherwise stated.




                                2.
with her cell phone, there was a scuffle for the phone. The video
left the impression that Doe might have hit her, which Doe
denied. Doe contended Jane was a very jealous person and after
the incident repeatedly threatened to make the video recording
public if he had any social contact with female students at UCSB.
             In late August 2016, before classes had begun, Doe
attended a week-long orientation program at UCSB for incoming
freshman. When he returned to San Diego, Jane accused him of
flirting with another young woman. On August 25, 2016, Jane
posted on her public Twitter account an edited 19-second version
of the video recording in which it appeared that Doe had hit her,
as the video goes dark. On the Twitter post, Jane stated she was
posting the video to protect other women from being battered.
             A student at UCSB saw the post on Twitter and
notified UCSB’s Office of Student Affairs, which then forwarded
the information to the campus police department. On August 30,
2016, a detective from UCSB’s campus police department drove
from Santa Barbara to San Diego to arrest and transport Doe to a
juvenile detention facility in San Diego. That same day, UCSB’s
Vice Chancellor of Student Affairs, Margaret Klawunn, issued an
interim suspension order and had it delivered to Doe while he
was being fingerprinted at the juvenile facility in San Diego. The
order barred him from entering the UCSB campus on the ground
that he posed a threat to the safety of the campus community.
He was also notified the allegation of relationship violence would
be investigated by UCSB’s Title IX office.
             The interim suspension was imposed pursuant to
section 105.08 of the University of California policies governing
student conduct (PACAOS) and section III (3)(D) of the
University of California’s Policy on Sexual Violence and Sexual




                                3.
Harassment. (PACAOS Appendix E.) These policies authorize
UCSB, pending a final determination on an alleged violation, to
“take interim measures as appropriate to ensure the safety, well-
being, and equal access to University programs and activities of
its students.” (PACAOS Appendix E, § III(3)(D).)
              Pursuant to PACAOS section 105.08, interim
suspensions may include exclusion from classes, other specified
activities, or areas of campus. Section 105.08 provides: “A
student shall be restricted only to the minimum extent necessary
when there is reasonable cause to believe that the student’s
participation in University activities or presence at specified
areas of the campus will lead to physical abuse, threats of
violence, or conduct that threatens the health or safety of any
person on University property.” (PACAOS, § 105.08, italics
added.) Section 105.08 further provides that a student placed on
interim suspension shall be given prompt notice of the charges,
the duration of the suspension, and the opportunity for a prompt
hearing on the suspension, and that the “[i]nterim suspension
shall be reviewed by the Chancellor within twenty-four hours.”
              On September 2, 2016, the San Diego County
Superior Court, Juvenile Division, found that Doe was not a
threat to anyone, including Jane, and ordered him released to the
custody of his mother. By September 14, 2016, two of the three
charges against Doe had been dismissed by the district attorney.
Doe notified UCSB that the juvenile court had found he was not a
threat to anyone, but no action was taken by the University.
Instead, a hearing was scheduled for September 16, 2016, to
address Doe’s request to set aside the interim suspension order so
he could move into his freshman dorm the next day.




                                4.
             Doe attended the hearing, along with his attorney,
and testified. Although he was told a decision would be made at
the end of the hearing, that did not happen. Rather, in a letter
dated September 22, 2016, Vice Chancellor Klawunn notified Doe
that the interim suspension order would remain in effect pending
completion of UCSB’s Title IX investigation. Doe was barred
from campus, campus housing, attending classes (including
online classes), and participating in UCSB activities.
             In October 2016, the San Diego County Juvenile
Court dismissed the remaining charge against Doe after Jane
admitted he had never hit her. Notwithstanding the dismissal of
criminal charges, UCSB continued the interim suspension while
it conducted its own investigation.
             UCSB’s policies on Sexual Violence and Sexual
Harassment prescribe the procedures governing the investigation
and adjudication of student misconduct. The policies require a
“prompt, fair, and impartial resolution” of reports of sexual
violence. The policies further provide that the investigation shall
be completed within sixty (60) business days, and the entire Title
IX process, including all administrative appeals, shall be
completed “within 120 business days from the date of Title IX’s
receipt of a report.” (PACAOS Appendix E, §§ III(1) & III(3)(J);
U.C. Policy – Sexual Violence & Sexual Harassment (2015) §
V(A)(4)(b).) Extensions are permitted only on a showing of good
cause and must be documented. UCSB’s policies have the force
and effect of statutory law. (Kim v. Regents of University of
California (2000) 80 Cal.App.4th 160, 165.)
             On October 21, 2016, Doe filed suit against the
Regents in the superior court, alleging claims for administrative
mandate (§ 1094.5), ordinary writ of mandate (§ 1085), and




                                5.
injunctive and declaratory relief. He sought termination of the
interim suspension and reinstatement as a student at UCSB.
             In December of 2016, Doe sought a preliminary
injunction of the suspension order so he could attend classes at
the beginning of the second quarter on January 6, 2017. On
January 3, 2017, the superior court denied the motion on
procedural grounds, concluding that mandamus relief was
unavailable because Doe had an adequate remedy at law through
the administrative process at UCSB and had not exhausted his
administrative remedies.
             On February 3, 2017, Doe sought a writ of mandate
in this court compelling the superior court to preliminarily enjoin
the enforcement of his interim suspension pending completion of
the Title IX investigation and administrative process. By then,
UCSB had exceeded the 60-day time period set forth in its own
rules, and had yet to complete its investigation. The interim
suspension had already spanned two academic quarters and it
appeared it would continue through the remainder of Doe’s
freshman year. Doe was precluded from exhausting his
administrative remedies due to UCSB’s delay in completing the
Title IX investigation, in violation of its own policies.
             On March 13, 2017, this court issued a suggestive
Palma notice, stating that the superior court might wish to
reconsider its order denying Doe’s request for a preliminary
injunction. 2 It appeared that Doe did not have an adequate
remedy at law because UCSB’s policies did not provide an avenue
for compelling completion of the Title IX investigation so he could

      2 See Palma v. U.S. Industrial Fasteners, Inc. (1984) 36
Cal.3d 171, 177-183; Brown, Winfield & Canzoneri, Inc. v.
Superior Court (2010) 47 Cal.4th 1233, 1248-1250.




                                6.
exhaust his administrative remedies. Doe had missed over half
of his freshman year of college, there were no charges pending
against him (civil or criminal), and no complaint had been filed
against him at UCSB.
            On March 21, 2017, the superior court conducted a
rehearing on Doe’s motion for a preliminary injunction. UCSB
confirmed that it still had not completed its Title IX
investigation. In an effort to show that Doe was not likely to
prevail on his claims, UCSB offered “new evidence,” i.e., two
emails dated August 29 and September 19, 2016, written by a
campus security officer and sent to the Office of Judicial Affairs.
These emails purported to summarize another officer’s reports
and contained multiple hearsay statements allegedly made by
Doe and Jane. UCSB had relied on the email summaries in
imposing the interim suspension, but had not disclosed their
contents to Doe until months later during the injunction
proceedings. Doe vigorously disputed the credibility of the email
summaries and argued he had been denied due process by
UCSB’s failure to disclose them.
            At the conclusion of the hearing, the superior court
granted Doe’s motion and preliminarily enjoined UCSB from
enforcing the interim suspension order. The court also stayed the
suspension pursuant to section 1094.5, subdivision (g). The court
found Doe was likely to prevail on the merits of his claims that he
had been denied due process by UCSB’s delay in the Title IX
investigation, its failure to consider less restrictive interim
measures while the investigative process dragged on, and by
withholding critical evidence.
            The superior court found UCSB’s investigation had
extended far beyond the time period (120 business days) which,




                                7.
under its policies, the entire Title IX process, including
administrative appeals, should have concluded. The court noted
that, even after more than 200 days, UCSB had “done nothing to
advance the investigation beyond interviewing [Doe].” The court
stated the record before it “reflects that no other interviews had
been performed,” including contacting Jane to corroborate
statements attributed to her. The court found that UCSB offered
“no viable or reasonable explanation” as to why the investigation
was not complete. The court found the delay “unreasonable and
arbitrary,” and the interim suspension “particularly egregious”
given UCSB’s delay in completion of its Title IX investigation in
violation of its own policies, the dismissal of the juvenile court
proceedings, and the seven-month interruption in Doe’s education
caused by UCSB’s inability or unwillingness to conclude its
investigation.
             The superior court further found that UCSB had
failed to show that it had considered less restrictive interim
measures, as required by UCSB’s policies (PACAOS section
105.08). 3 The court stated that UCSB had issued an interim
suspension that was unlimited in both duration and scope,
without considering any less restrictive interim measures that
might have allowed Doe to continue his education while the
investigation proceeded, and then “inexplicably allowed the
investigation to drag on for months beyond the governing
timelines.” The court noted Doe had no administrative remedy to


       3 Under UCSB’s policies governing student conduct, lesser
restrictive measures include warnings or censure, no contact
orders, probation, loss of privileges and activities, exclusion from
specified areas on campus, community service, and fines.
(PACAOS, §§ 105.00-105.11; PACAOS Appendix E, § III(3)(D).)




                                 8.
compel the Regents to complete the Title IX process and
determine whether disciplinary charges would even be made
against him.
                The superior court went on to state: “[The Regents’s]
argument that due process does not require production of all
evidence at the interim suspension stage is irreconcilable with
the nature and seriousness of the entire process at hand. . . . Doe
is entitled to know all the information against him at the hearing
. . . . [It] is patently obvious to this Court, [Doe] was seriously
prejudiced by the use of [the undisclosed detective’s] summaries.”
                With respect to the relative harm to the parties
resulting from issuance or non-issuance of injunctive relief, the
superior court found that Doe had made a compelling showing of
irreparable harm. The court noted that, absent injunctive relief,
Doe would miss his entire freshman year because UCSB still had
not completed its investigation, in violation of its own policies.
The court stated, “Nothing in this record suggests that the
investigation is complex or requires extraordinary time to
complete; the only reasonable inference is to the contrary.” The
court stated that Doe’s education was on hold, he was precluded
from taking online courses at UCSB or attending community
college unless he withdrew from UCSB, and he had incurred
substantial attorney’s fees and costs during the interim
suspension. The court concluded: “[T]he University is
intentionally doing indirectly what it is unwilling to do directly.
The University has made a decision to deny John Doe the
opportunity to enroll in any of the first three quarters of his
freshman year. But instead of making the decision based upon
the facts, the law, and in fairness, it has decided to do it their
own way.”




                                 9.
             The superior court ordered that the preliminary
injunction and stay would continue in effect through the
conclusion of the administrative process and judicial review (if
any). It ordered UCSB to take specific measures to assist Doe’s
assimilation into school, consistent with UCSB’s policies.
             UCSB then ended the interim suspension, reinstated
Doe as an enrolled student for the spring quarter of 2017, and
assisted him with obtaining on-campus housing.
             On May 16, 2017, the Regents appealed the superior
court’s order granting the preliminary injunction to this court.
(Doe v. Regents of the University of California (Super. Ct., Santa
Barbara County, 16CV04758, B282663).)
             Thereafter, in November of 2017, UCSB completed its
Title IX investigation. On November 17, 2017, the Title IX Office
recommended that Doe be found responsible for violating UCSB’s
Sexual Violence/Sexual Harassment policy prohibiting dating
violence. The Office of Judicial Affairs (OJA) accepted the
recommendation and ordered that Doe be suspended from UCSB
for two years.
             Doe then appealed the OJA’s decision to UCSB’s
Interpersonal Violence Appellate Review Committee (IPVARC).
On April 4, 2018, IPVARC conducted a hearing at which Doe
presented evidence as to why he was not responsible for the
charge of dating violence. On April 18, 2018, IPVARC found that
Doe was not responsible for dating violence, but was responsible
for violating UCSB’s Student Conduct Code for making threats to
Jane. The IPVARC modified the proposed disciplinary sanction
to provide Doe with credit for time served during his interim
suspension, so that Doe would not face any further suspension.




                               10.
              Doe then appealed IPVARC’s decision to UCSB’s Vice
Chancellor of Student Affairs (Margaret Klawunn). After Doe
contended the Vice Chancellor had a conflict, Dean Jeffrey Milem
was appointed to review the appeal.
              On May 21, 2018, Dean Milem reversed IPVARC’s
decision that Doe had violated UCSB’s Student Conduct Code.
Dean Milem concluded that Doe had not been given adequate
notice of the threat charge. Dean Milem also reversed the
disciplinary sanction. According to the declaration of UCSB’s
Associate Dean of Students, Suzanne Perkin, who oversees the
OJA at UCSB, Doe was found “not responsible for violating any
provision of University policy arising from this matter, he has
received no sanction, and he never will.” Ms. Perkins further
declared that UCSB decided not to charge Doe with any further
policy violations arising from the incident and declined to pursue
the matter any further.
              On June 22, 2018, after UCSB determined it would
not pursue this matter any further, the Regents filed a request in
this court to voluntarily dismiss their appeal of the preliminary
injunction in B282663. By that time, Doe’s counsel had already
incurred the expenses of briefing the appeal. On June 27, 2018,
this court dismissed the Regents’s appeal and issued the
remittitur.
              Thereafter, on June 29, 2018, the Regents filed a
motion in the superior court to dismiss Doe’s action as moot,
contending there were no justiciable controversies remaining in
the action. The Regents argued that Doe sought three forms of
relief in his pleadings: termination of the interim suspension,
reinstatement as an enrolled student, and removal of any
reference to the interim suspension in his student records. Doe




                               11.
prevailed in the administrative proceedings, was reinstated as an
enrolled student, and had obtained the available relief sought in
his first amended complaint.
             In declarations submitted in support of its motion,
the Dean of Students (Suzanne Perkins) confirmed that Doe’s
UCSB records “were devoid of any notation that he [had] been
sanctioned.” Miles Ashlock, Acting Associate Dean of Student
Life at UCSB, also confirmed that “[n]owhere on [Doe’s] official
transcript does it state he is subject to interim suspension or
discipline arising from the . . . incident.” Ashlock explained that
while prospective academic institutions and employers do not
typically inquire whether a student has ever been placed on
interim suspension, if such an inquiry was made regarding Doe,
UCSB’s response would be “No,” due to the superior court’s
March 21, 2017, preliminary injunction “reversing” the interim
suspension.
             On July 23, 2018, Doe filed a second amended
petition and complaint in the superior court, asserting the same
causes of action as his prior pleadings and an additional claim
alleging that UCSB had violated his right to privacy after its
Title IX office had sent his confidential disciplinary file to a third
party (Mary Beth), who UCSB had mistakenly concluded was
Jane.
             On July 25, 2018, Doe opposed the Regents’s motion
to dismiss, arguing the action was not moot because the interim
suspension order had never been formally reversed, there had
been “additional wrongs directed at [Doe],” and the second
amended complaint was the operative pleading with justiciable
controversies remaining. Doe wanted the superior court to issue
a writ “commanding that [the interim suspension order] be




                                 12.
reversed so that his name will be cleared and he can go through
life without having to say that he was suspended for conduct
issues.” Doe continued: “His interim suspension was premised
upon violation of policies and an actual finding [by Vice
Chancellor Klawunn] that he was a threat to the safety of the
community. [He] cannot have this on his record.”
               On August 7, 2018, in a minute order, the superior
court granted UCSB’s motion and dismissed the action as moot. 4
The court ruled that Doe did not have leave to amend to add
claims that arose after the filing of the earlier pleadings, but
regardless of which pleading was the operative one the action
was moot. The court concluded there was no relief remaining for
the court to give either in mandamus or by way of declaratory
relief.
               The superior court stated: “Doe insists that the
suspension order was not ‘reversed.’ This is a semantic
argument. The interim suspension was just that – interim. This
Court enjoined it, rendering it ineffective. And, upon final
determination in Doe’s favor, the interim suspension had no
effect. . . . [¶] Doe wants the Court to remove all record of the
suspension order from [UCSB’s] files. He says that other
educational institutions and potential employers could learn of
the interim suspension. Regents’[s] evidence establishes that
this is not the case. . . . Prospective academic institutions and
employers do not typically inquire whether a student has ever

       4 Doe filed a notice of appeal from the unsigned minute
order. We deem the order to incorporate a judgment of dismissal
and will review the order in the interest of judicial economy and
justice. (Yee v. Cheung (2013) 220 Cal.App.4th 184, 192, fn. 5.)




                               13.
been placed on interim suspension. If they did, UCSB’s response
would be ‘No,’ due to this Court’s March 21, 2017, order. . . .
Doe’s official UCSB transcript contains no reference to the
interim suspension or any discipline.”
             Thereafter, Doe filed a motion for an award of
attorney’s fees under the private attorney general doctrine
codified in section 1021.5. Doe’s counsel sought $265,508,
representing fees incurred from the inception of the case (August
30, 2016) through the superior court’s order of March 21, 2017,
preliminarily enjoining Doe’s interim suspension. This figure
also included fees and costs related to the Regents’s appeal of the
March 21, 2017, preliminary injunction, which the Regents
voluntarily dismissed, and the time incurred in preparing the
motion for attorney’s fees. Doe’s counsel stated that he expended
over $135,000 in additional time and costs during the
administrative proceedings after March 21, 2017, but was not
requesting an award of fees for those services. Doe’s counsel
requested the fees be increased by a multiplier of 1.6.
             Following a hearing, the superior court denied the
motion, concluding Doe had failed to satisfy two of the four
criteria required for an award of fees under section 1021.5.
Specifically, the court concluded that Doe had failed to
demonstrate that his action conferred a significant benefit on the
general public or a large class of persons, and it was questionable
whether the necessity and financial burden of private
enforcement were such as to make the award appropriate.
                  Dismissal of Doe’s Action as Moot
             Doe first contends the superior court erred in
granting the Regents’s motion to dismiss his action as moot. He
argues the action is not moot because the interim suspension




                                14.
order was never reversed or vacated. UCSB was preliminarily
enjoined from continued enforcement of the interim suspension
order pending completion of the administrative process. He
argues that when he was cleared in the administrative process on
the relationship violence charge, UCSB “did nothing to clear,
vacate, or reverse the Interim Suspension Order which was a
distinct administrative charge (premised upon being a threat to
the safety of all students).” He believes it remains on his record
and is a suspension he will have to answer for whenever asked.
He argues that until the order is vacated, it “is res judicata on
that issue . . . between these parties.”
               “A case is considered moot when ‘the question
addressed was at one time a live issue in the case,’ but has been
deprived of life ‘because of events occurring after the judicial
process was initiated.’ [Citation.] . . . The pivotal question in
determining if a case is moot is . . . whether the court can grant
the plaintiff any effectual relief. [Citations.]” (Wilson & Wilson
v. City Council of Redwood City (2011) 191 Cal.App.4th 1559,
1574.) “We review mootness, a question of law, de novo.”
(Biodiversity Legal Foundation v. Badgley (9th Cir. 2002) 309
F.3d 1166, 1173.) We “apply the substantial evidence standard to
. . . [the] court’s findings of fact.” (SFPP v. Burlington Northern
& Santa Fe Railway Co. (2004) 121 Cal.App.4th 452, 461.)
               Because the superior court could not grant Doe
effectual relief on any of his claims, it did not err in dismissing
the action as moot. UCSB cleared Doe of any wrongdoing,
thereby overturning former Vice Chancellor Klawunn’s
conclusion that his “presence on the UCSB campus poses a threat
to the health and safety of the University community.”
Additionally, Doe’s official transcript does not show the interim




                                15.
suspension. The court credited Ashlock’s declaration that if in
the future anyone were to inquire whether Doe had been placed
on interim suspension, UCSB’s response would be “No.”
“Credibility is an issue for the fact finder. . . . [W]e do not
reweigh evidence or reassess the credibility of witnesses.”
(Johnson v. Pratt & Whitney Canada, Inc. (1994) 28 Cal.App.4th
613, 622.)
             Moreover, the interim suspension was rendered
inoperative by the superior court’s order staying and
preliminarily enjoining the suspension “through the conclusion of
the entire administrative process.” Therefore, in the unlikely
event Doe is asked if he was ever placed on interim suspension,
he can legitimately answer, “No.” In these circumstances, the
continuation of Doe’s lawsuit would result in a waste of judicial
resources and a needless expense for the parties.
             The doctrine of res judicata is inapplicable. “‘Res
judicata’ describes the preclusive effect of a final judgment on the
merits.” (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888,
896.) Res judicata may apply “[w]here judicial review is not
sought and the administrative decision becomes final . . . .”
(California Coastal Com. v. Superior Court (1989) 210 Cal.App.3d
1488, 1493.) Here, the interim suspension order was what it
purported to be, i.e., a provisional or temporary order, not a
“final” order.
        The Superior Court’s Order Denying Attorney’s Fees
             Doe contends the superior court applied the wrong
standard in denying his motion for attorney’s fees and was misled
by the Regents’s counsel as to the impact and significance of his
litigation.




                                16.
             To obtain attorney’s fees in this context under section
1021.5, the moving party must establish that: (1) it is “a
successful party” in an “action”; (2) the action “has resulted in the
enforcement of an important right affecting the public interest”;
(3) the action has conferred “a significant benefit, whether
pecuniary or nonpecuniary, . . . on the general public or a large
class of persons”; and (4) the necessity and financial burden of
private enforcement are such as to make the award appropriate.
(§ 1021.5.)
             “‘[T]he private attorney general doctrine “rests upon
the recognition 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.” 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.’ [Citation.]”
(Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 565.)
             We review a superior court’s ruling on a motion for
attorney fees under section 1021.5 for abuse of discretion, but de
novo review is warranted where the determination of whether the
statutory criteria were satisfied “‘“amounts to statutory
construction and a question of law.”’” (Conservatorship of Whitley
(2010) 50 Cal.4th 1206, 1213 (Whitley).)
             “Because of the prominence of legal questions in
applying the criteria of section 1021.5, some appellate courts
have conducted their review using a two-step approach. First,
the appellate court considers whether the superior court applied




                                17.
the proper legal standards in reaching its determination.
[Citation.] If the superior court’s order is not consistent with the
applicable principles of law, the order necessarily falls outside
the scope of the superior court’s discretion. [Citation.] In
completing this step of the inquiry, an appellate court must pay
particular attention to the superior court’s stated reasons for
denying fees. [Citation.] [¶] Second, if the superior court applied
the proper legal standards, the appellate court determines
whether the result was within the range of the superior court’s
discretion—that is, whether there was a reasonable basis for the
decision. [Citation.] The range of discretion granted to superior
courts by section 1021.5’s use of the permissive term ‘may’ is
limited. [Citation.] Specifically, attorney fees must be awarded
when the statutory criteria are met unless special circumstances
render such an award unjust. [Citation.] This limitation on the
superior court’s discretion and the fact that the application of the
statutory criteria often presents reviewing courts with questions
of law are the reasons for the number of appellate decisions in
which a superior court’s denial of attorney’s fees under section
1021.5 has been reversed.” (Robinson v. City of Chowchilla
(2011) 202 Cal.App.4th 382, 391.)
     Successful Party and Enforcement of an Important Right
             The parties do not dispute that Doe satisfies the first
element under section 1021.5 – he was the successful party.
Indeed, as the superior court found, Doe achieved all of his
objectives in the litigation.
             Nor do the parties dispute that Doe’s litigation
enforced an important right. “Courts have broadly interpreted
the important right concept” to encompass constitutional rights
as well as statutory rights that further “important” rather than




                                18.
“trivial or peripheral public policies.” (Sweetwater Union High
School Dist. v. Julian Union Elementary School Dist. (2019) 36
Cal.App.5th 970, 988; Bell v. Vista Unified School District (2000)
82 Cal.App.4th 672, 690.)
              The superior court found that Doe’s action enforced
important due process rights in student disciplinary proceedings,
i.e., requiring USCB to comply with its own policies and
procedures. (See Doe v. University of Southern California (2018)
29 Cal.App.5th 1212, 1238; Press v. Lucky Stores, Inc. (1983) 34
Cal.3d 311, 318 (Press) [“Attorney fees have consistently been
awarded for the enforcement of well-defined, existing
obligations”].) The court necessarily found, and we agree, that
this is not a trivial right. We also note that the important right
and significant benefit element, discussed below, “to some extent
dovetail.” (La Mirada Avenue Neighborhood Assn. of Hollywood
v. City of Los Angeles (2018) 22 Cal.App.5th 1149, 1158.)
    Conferring a Significant Benefit on a Large Class of Persons
              The third element under section 1021.5 is satisfied
when the lawsuit has conferred a significant benefit on the
general public or a large class of persons. The superior court
determines “the significance of the benefit, as well as the size of
the class receiving [that] benefit, from 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 (Woodland
Hills).)
              Like the important right element, courts have
broadly construed the significant benefit element. (See Pearl,
Cal. Attorney Fee Awards (Cont.Ed.Bar 3d ed. 2020), §§ 3.40,
3.51.) For a benefit to be significant, the “extent of the public




                                19.
benefit” from the lawsuit must be substantial but “need not be
great.” (RiverWatch v. County of San Diego Dept. of
Environmental Health (2009) 175 Cal.App.4th 768, 781.) The
benefit need not be monetary, and “need not represent a ‘tangible’
asset or a ‘concrete’ gain . . . .” (Woodland Hills, supra, 23 Cal.3d
at p. 939; § 1021.5 [defining “a significant benefit” as either
“pecuniary or nonpecuniary”]; Braude v. Automobile Club of
Southern Cal. (1986) 178 Cal.App.3d 994, 1011 [“the benefit may
be conceptual or doctrinal and need not be actual [or] concrete”].)
As our Supreme Court has noted, “the effectuation of a
fundamental constitutional or statutory policy” can itself
constitute a significant benefit. (Woodland Hills, supra, at p.
939.) Moreover, “fees may not be denied merely because the
primary effect of the litigation was to benefit the individual
rather than the public.” (Indio Police Command Unit Assn. v.
City of Indio (2014) 230 Cal.App.4th 521, 543 (Indio).)
             The superior court concluded that Doe had failed to
satisfy the significant benefit element because the relief sought
and obtained in his action “was inherently personal in nature,
involving the termination of his interim suspension and
reinstatement as an active, full-time student pending the
conclusion of the investigation.” Focusing on section 105.08 of
the Policies of Student Conduct (requiring that interim
disciplinary measures restrict the accused student only to the
minimum extent necessary), the court found there was no
evidence to support the conclusion that Doe’s action resulted in a
revision or revocation of the rule, or that there was widespread
misapplication of the rule, such that a large class of persons could
potentially be impacted.




                                20.
              The superior court concluded: “After a realistic
assessment of the gains which have resulted from [Doe’s] action,
there is no evidence before this Court to support the existence of
any articulable significant benefit to . . . a large class of persons,
or in fact any benefit other than that which is inherent in any
action in which illegal or improper conduct is rectified . . . . The
gains which were achieved by [Doe’s] action were entirely
personal, and any other benefits achieved were incidental to
[Doe’s] personal stake.”
              Doe contends that his action effectuated important
constitutional and statutory due process rights, and conferred a
benefit on all students attending UCSB. He argues the superior
court misinterpreted section 1021.5 by focusing primarily on his
personal interest in bringing the litigation, as opposed to the
significance of the constitutional due process rights that were
enforced, and that this misinterpretation “drove the denial of
fees.” We agree.
              Here, UCSB’s written policies require prompt and
timely investigation of complaints for sexual harassment and
sexual violence. The superior court found that UCSB had failed
to follow its own policies and procedures in issuing the interim
suspension and violated Doe’s constitutional right to due process.
The court found the interim suspension was egregious given
UCSB’s delay in completion of the Title IX investigation. Doe’s
action held the university accountable for its violation of these
policies and enjoined an indefinite interim suspension issued in
violation of those rules. The action enforced a student’s right to
have the university comply with its own policies governing the
time limits for resolving Title IX complaints and investigations.
It confirmed the availability of injunctive relief to prohibit an




                                 21.
interim suspension where the university unreasonably delays
completion of a Title IX investigation, fails to consider less
restrictive measures, and conceals critical evidence utilized in
issuing the interim suspension order, all in violation of UCSB’s
policies.
             “Litigation which enforces constitutional rights
necessarily affects the public interest and confers a significant
benefit upon the general public.” (City of Fresno v. Press
Communications, Inc. (1994) 31 Cal.App.4th 32, 44, citing Press,
supra, 34 Cal.3d at p. 318.) “While these rights are by nature
individual rights, their enforcement benefits society as a whole.”
(Press, supra, at p. 319.)
             Here, the superior court narrowly construed the
significant benefit element and gave insufficient recognition to
the significance of the due process rights that were effectuated
and the extent of the public benefit. All students at a university
are benefitted when it is required to follow its own policies and
procedures. A lawsuit that forces an entity to follow its own rules
can confer a significant benefit. (See Doe v. Westmont College
(2019) 34 Cal.App.5th 622, 640 [requiring university to comply
with its own written policies “benefits students accused of sexual
misconduct, victims, and colleges alike”]; Indio, supra, 230
Cal.App.4th at p. 541.)
             Further, a party may provide evidence to
substantiate the significance of the benefit of his lawsuit, but he
is not obligated to do so under section 1021.5. It is enough if the
superior court could reasonably conclude that the significant
benefit conferred by the action would reach a large group of
people. (Boatworks, LLC v. City of Alameda (2019) 35




                                22.
Cal.App.5th 290, 308 [looking at what the superior court could
conclude].)
              Doe’s action and the injunction he obtained will
provide a significant benefit to a large group of people. The
injunction should deter UCSB from violating its policies requiring
prompt resolution of Title IX allegations, particularly where
interim suspensions are issued. The deterrent effect of the
injunction will benefit all students at UCSB, including those
similarly situated to Doe, who will be assured that, once enrolled
at a public university, they will not be unreasonably, arbitrarily,
and indefinitely suspended in violation of the university’s own
policies. (See Press, supra, 34 Cal.3d at pp. 320-321 [deterrent
effect of injunction satisfied significant public benefit element of
private attorney general fees under C.C.P. section 1021.5];
MBNA American Bank N.A. v. Gorman (2006) 147 Cal.App.4th
Supp. 1, 10 [same].) Contrary to the Regents’s contention, the
benefit to the campus community from the injunction in this case
cannot be described as “minuscule.”
              Additionally, the superior court performed its
analysis of the benefits of Doe’s action without access to “all of
the pertinent circumstances” available. (Woodland Hills, supra,
23 Cal.3d at pp. 939-940.) In support of his fee motion, Doe
submitted evidence that the Department of Education had
accepted review of his complaint concerning UCSB’s delay in
completion of the Title IX investigation and issuance of an
interim suspension without considering lesser measures. He
notified the Department of Education of the superior court’s
injunction. The superior court found this evidence unpersuasive,
stating: “[T]hat an agency . . . has said that it will look into
[Doe’s] matter does not provide evidence that gives rise to any




                                23.
conclusion that [Doe’s] proceeding – filed to achieve inherently
personal relief – has conferred a significant benefit upon a large
class of persons.” 5
             Doe also submitted the declaration of N.N., a female
USCB student who, like Doe, had also been the subject of an
interim suspension prolonged by a lengthy, delayed Title IX
investigation. In her declaration, she stated that she attended
the superior court’s hearing in March of 2017, when the court
issued the preliminary injunction enjoining Doe’s interim
suspension. She declared that Doe’s litigation motivated her to
fight her interim suspension and file her own complaint with the
Department of Education in May of 2017. Her complaint
addressed, among other things, UCSB’s delay in completing Title
IX investigations, the same reason Doe’s interim suspension had
been enjoined and the identical claim Doe made in his complaint
with the Department of Education. She referenced Doe’s action
in her complaint.
             N.N.’s complaint was resolved on September 27,
2018, when UCSB entered into a Resolution Agreement with the
Department of Education. 6 In the agreement, UCSB agreed to
promptly resolve future Title IX investigations, particularly in
situations in which a student has been subject to an interim
suspension. UCSB also agreed to provide documentation to the

      5 Ultimately, according to the parties, Doe’s complaint was
not resolved by the Department of Education due to the pending
litigation in this case.
       6 This court granted Doe’s request to take judicial notice of
the Resolution Agreement dated September 27, 2018, entered
into between UCSB and the United States Department of
Education, Office for Civil Rights. (Evid. Code, §§ 452, subd. (c),
459.)




                                 24.
Department of Education showing its compliance, and provide
training for its employees on how to comply with the time limits
for Title IX allegations and ensure that UCSB is tracking
“promptness.” 7
             Although the superior court had the declaration of
N.N before it during the hearing on Doe’s fee motion on October
23, 2018, the court was unaware of the existence of the
Resolution Agreement. Contrary to the statements in N.N.’s
declaration, the Regents’s counsel argued in its written
opposition to Doe’s motion that there was “no evidence suggesting
[Doe’s] case even slightly influenced [N.N.’s].” At the hearing on
the fee motion, the Regents’s counsel added: “Just for the record .
. . anyone can file a complaint for a federal investigation with the
[Office of Civil Rights]. As we know, anyone can file a lawsuit.
There has been no outcome to suggest that the filing of a
complaint with the Office of Civil Rights somehow inures to the
benefit of separate litigation that has nothing to do with the
investigation or justifies an award of fees.”




      7 In particular, the Resolution Agreement obligates UCSB
to provide, by August 1, 2019, information sufficient for the Office
of Civil Rights to determine that UCSB is promptly resolving
Title IX allegations. “That information shall include, at a
minimum, the date the allegation was made, the date of any
interim suspension, the date recommended findings were made
by the Title IX office, the date the Office of Judicial Affairs issued
its final decision, and any communications with parties regarding
investigations that last longer than the time period set out in
University policy. This information will be provided for all Title
IX allegations made from the date of this agreement through the
end of the 2018-19 school year.” (Resolution Agreement, ¶ (B)(2).)




                                 25.
              Doe contends, and we agree, that the Regents’s
arguments at the hearing were misleading. UCSB had stipulated
to corrective action three weeks before the hearing on Doe’s fee
motion and knew what the outcome was of N.N.’s complaint. The
Regents knew UCSB had agreed to implement major changes in
its Title IX investigations to resolve compliance concerns raised
by the Department of Education in response to N.N.’s complaint.
The superior court had evidence before it that Doe’s case had
influenced N.N. to file her complaint, but the outcome of her
complaint and the Resolution Agreement was not disclosed to the
court. Instead, the superior court was left with the erroneous
belief that there had been no favorable or relevant outcome to
N.N.’s complaint. 8
              The Regents contend that the outcome of N.N.’s
complaint with the Department of Education and, hence, the
Resolution Agreement, are irrelevant for the purposes of
determining whether Doe’s action provided a significant benefit
to the public. This contention is unpersuasive. First, in denying
Doe’s fee motion, the superior court stated there was no evidence
before it of any “widespread misapplication of [section] 105.08 at
UCSB, such that any large class of persons could potentially have
been impacted.” The Resolution Agreement, however, shows
there was a systemic problem in UCSB’s Title IX office
concerning the timeliness of Title IX investigations, “particularly
in situations in which a [student] has been subject to an interim
suspension.” (Resolution Agreement, ¶ (I)(A).) Indeed, this is not
the first case this court has seen in which a Title IX investigation

      8 During oral argument before this court, the Regents’s
counsel stated he was unaware of the Resolution Agreement at
the time of the superior court’s hearing on the fee motion.




                                26.
at UCSB exceeded the governing time requirements under the
school’s written policies while a student was subject to an interim
suspension. (See, e.g., Doe v. Regents of the University of
California (2018) 28 Cal.App.5th 44, 47 [Title IX investigation
took 10 months to complete after student was placed on interim
suspension].)
             Second, surely UCSB was aware of the March 21,
2017, injunction against it in this case when it entered into the
Resolution Agreement. It strains credibility to believe that
UCSB did not take into account the injunction when it entered
into the Resolution Agreement. Both this court and the superior
court had held the university accountable for the very compliance
issues addressed in the Resolution Agreement. The changes in
UCSB’s Title IX office required by the Resolution Agreement will
impact all students at UCSB, in particular, those subject to the
disciplinary process, including victims of sexual harassment and
violence. This additional evidence, which was in UCSB’s
possession at the time of the hearing, was relevant and supported
Doe’s request for attorney’s fees. (See, e.g., Protect Our Water v.
County of Merced (2005) 130 Cal.App.4th 488, 496 [significant
public benefit where litigation prompted agency to improve
methods of creating and managing its CEQA records].)
             Even if Doe’s action had not influenced N.N. to file
her complaint with the Department of Education, by the time she
had done so, USCB had already received unfavorable decisions
from the superior court and this court in Doe’s case holding it
accountable for its delay in completing the Title IX investigation
in violation of its policies. Requiring UCSB to comply with its
policies in student misconduct cases provides a significant benefit
to all UCSB students.




                                27.
              Finally, the cases relied upon by the Regents are
distinguishable. (See Ryan v. Cal. Interscholastic Federation
(2001) 94 Cal.App.4th 1033, 1045 [trial court abused its
discretion by awarding attorney’s fees under section 1021.5
because the litigation was “simply a substantial evidence matter
involving [plaintiff’s] personal interests” only]; Tuthill v. City of
San Buenaventura (2014) 223 Cal.App.4th 1081 [appellate court
reversed award of attorney’s fees under section 1021.5 because
moving parties were not the successful parties; moving parties
did not obtain the relief sought or vindicate an important right];
Pacific Legal Foundation v. California Coastal Commission
(1982) 33 Cal.3d 158, 167 [primary effect of the lawsuit was to
invalidate a permit condition not supported by substantial
evidence; attorney’s fees properly denied where the action
vindicated only the rights of the owners of a single parcel of
property and did not represent “a ringing declaration of the
rights of all or most landowners in the coastal zone”].)
      Necessity and Financial Burden of Private Enforcement
              The final element required for an award of fees under
section 1021.5 is that the “necessity and financial burden of
private enforcement . . . are such as to make the award
appropriate . . . .”
(§ 1021.5.) The superior court concluded it was unnecessary to
decide whether this element had been established because Doe
failed to show that the litigation satisfied the significant benefit
element. Nevertheless, the court noted it was “questionable
whether [he] has met [the necessity and financial burden]
requirement.”
              “[T]he necessity and financial burden requirement
‘“really examines two issues: whether private enforcement was




                                 28.
necessary [first prong] and whether the financial burden of
private enforcement warrants subsidizing the successful party’s
attorneys [second prong].”’ [Citations.] The ‘necessity’ of private
enforcement ‘“‘“looks to the adequacy of public enforcement and
seeks economic equalization of representation in cases where
private enforcement is necessary.”’ [Citations.]”’” (Whitley,
supra, 50 Cal.4th at pp. 1214-1215.) “[T]he ‘necessity . . . of
private enforcement’ has long been understood to mean simply
that public enforcement is not available, or not sufficiently
available.” (Id. at p. 1217.) Here, the
“‘necessity . . . of private enforcement’” requirement was satisfied
because public enforcement of Doe’s rights was unavailable.
“Strong personal motivation may increase the likelihood of
private enforcement, but it does not, as a logical matter, affect
the necessity of private enforcement—only the availability of
public enforcement does that.” (Ibid.)
              “The second prong of the inquiry addresses the
‘financial burden of private enforcement.’ In determining the
financial burden on litigants, courts have quite logically focused
not only on the costs of the litigation but also any offsetting
financial benefits that the litigation yields or reasonably could
have been expected to yield.” (Whitley, supra, 50 Cal.4th at p.
1215.) “‘The final step is to place the estimated value of the case
beside the actual cost and make the value judgment whether it is
desirable to offer the bounty of a court-awarded fee in order to
encourage litigation of the sort involved in this case. . . . [A]
bounty will be appropriate except where the expected value of the
litigant's own monetary award exceeds by a substantial margin
the actual litigation costs.’” (Id. at p. 1216.) Doe neither
expected to receive nor received any monetary award for his




                                29.
litigation contesting the interim suspension. It follows that he
has satisfied the second prong. (See Wilson v. San Luis Obispo
County Democratic Central Committee (2011) 192 Cal.App.4th
918, 927 [“The Committee met the second prong . . . because the
litigation yielded no financial benefits to offset the Committee’s
litigation costs”].)
              The superior court stated that Doe’s primary purpose
in filing this action “was to pursue and protect his own rights and
interest by having the interim suspension modified or vacated,
and being reinstated as an active student pending the completion
of the investigation of the charges made against him.” Doe’s
nonpecuniary motive does not disqualify him from satisfying the
requirements of the second prong. “[A] litigant’s personal
nonpecuniary motives may not be used to disqualify that litigant
from obtaining fees under Code of Civil Procedure section
1021.5. . . . [T]he purpose of section 1021.5 is not to compensate
with attorney fees only those litigants who have altruistic or lofty
motives, but rather all litigants and attorneys who step forward
to engage in public interest litigation when there are insufficient
financial incentives to justify the litigation in economic terms.”
(Whitley, supra, 50 Cal.4th at p. 1211.)
              The parties do not dispute that Doe had no ability to
pay for legal representation, as would be true for most students.
Without representation, the interim suspension in this case
would have resulted in a de facto expulsion, in violation of
UCSB’s policies. In these circumstances, the necessity and
financial burden of private enforcement makes an award of
attorney’s fees under section 1021.5 appropriate. (See Slayton v.
Pomona Unified School Dist. (1984) 161 Cal.App.3d 538, 552-553
[attorney fees awarded in case in which a group of students were




                                30.
wrongfully disciplined, when they had no pecuniary interest at
stake].) The policy underlying section 1021.5 is furthered by
awarding fees.
                   Amount of the Attorney’s Fees
             Finally, the Regents contend that if we conclude Doe
meets the requirements to justify an award of attorney’s fees
under section 1021.5, any award of fees must be significantly
reduced. The appropriate amount of fees is a distinct question
from whether a fee award is justified. The superior court should
determine in the first instance the appropriate amount of fees to
be awarded and the amount of the multiplier, if any. (See Center
for Biological Diversity v. County of San Bernardino (2010) 188
Cal.App.4th 603, 616, 623.)
                             Disposition
             The judgment of dismissal is affirmed. The
postjudgment order denying attorney fees is reversed and the
matter is remanded to the superior court for a determination of
the amount to be awarded. Doe is awarded costs on appeal.



                                     YEGAN, Acting P. J.

We concur:



             PERREN, J.



             TANGEMAN, J.




                               31.
                   Thomas P. Anderle, Judge

            Superior Court County of Santa Barbara

                ______________________________

           Robert P. Ottilie for Plaintiff and Appellant.

           Nye, Stirling, Hale & Miller, Jonathan D. Miller and
Alison M. Bernal for Defendant and Respondent.




                              32.
Filed 6/29/20
                  CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                  SECOND APPELLATE DISTRICT

                            DIVISION SIX


JOHN DOE,                                2d Civil No. B293153
                                     (Super. Ct. No. 16CV04758)
     Plaintiff and Appellant,          (Santa Barbara County)

v.
                                        ORDER CERTIFYING
THE REGENTS OF THE                  OPINION FOR PUBLICATION
UNIVERSITY OF                       [NO CHANGE IN JUDGMENT]
CALIFORNIA,

     Defendant and Respondent.



THE COURT:
            The opinion in the above-entitled matter filed on
June 5, 2020, was not certified for publication in the Official
Reports. For good cause, it now appears the opinion should be
published in the Official Reports and it is so ordered.




YEGAN, ACTING P.J.              PERREN, J.      TANGEMAN, J.
