John Doe,

V.

Pomona College,

BS163739

Judge Mary Strobel Hearing: March 6, 2018

Tentative Decision on Motion for Attorney's Fees

Petitioner John Doe ("Petitioner") seeks an award of attorney's fees against Respondent Pomona College ("Respondent") in the amount of at least $255,672.50 pursuant to CCP section 1021.5.

Judicial Notice - Petitioner's Reply RJN - Granted . (Evid. Code§ 452(h).)

Statement of the Case

Administrative Proceedings

On November 10, 2015, Roe filed a Title IX complaint against Petitioner for alleged sexual misconduct. 1 (AR 192.) Between November 20, 2015 and March 15, 2016, investigators interviewed Roe, Petitioner, and approximately 20 witnesses. (AR 196-199.)

In January 2016, the Respondent's Board of Trustees approved a new Sexual Misconduct, Harassment, and Discrimination Policy and Procedures. (AR 77-122.) On December 10, 2015, Respondent informed Petitioner that the sexual misconduct policy was in the process of being reviewed. (AR 71.) On February 11 , 2016, Respondent emailed Petitioner a copy of the new 2016 sexual misconduct policy. (AR 132.) Petitioner was not informed in that email that the new policy would apply to his case. (Ibid .)

On March 28, 2016, investigator Li Fellers issued her investigation report, which included summaries of witness statements. Fellers concluded that "based on the preponderance of evidence, ... there is enough evidence to move this allegation forward for a hearing before an External Adjudicator." (See AR 192-246.) On or about April 8, 2016, Title IX Coordinator Daren Mooko issued to Petitioner a Statement of Alleged Violation , which charged Petitioner with digitally penetrating Roe's vagina on March 6, 2015 without her consent. (AR 189-190, 248, 394.) Petitioner was apparently informed of the outcome and given the investigation report during an in-person meeting with Dean Mooko on April 8, 2016. (Oppo. 8:19-20; AR 394.) The investigation report stated that the definitions of sexual misconduct from the policy in place at the time of the

1 Additional background facts are found in the court's final ruling on the writ petition.

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incident would apply. (AR 193; see AR 1-31 [2013 policy].) A footnote stated that the adjudication of the complaint would follow the procedures in the new 2016 sexual misconduct policy. (AR 193 and fn. 1.)

An administrative hearing was held before external adjudicator Joseph Costa on May 17, 2016. Roe did not appear at the hearing. The external adjudicator heard testimony from Petitioner, investigator Fellers, German Rojas (Petitioner's roommate) , and Dean Moya Carter. He also considered Fellers' investigation report and attached exhibits. The external adjudicator concluded that Petitioner did not obtain Roe's consent to penetrate her dig ital ly on March 6, 2015 and violated the relevant Pomona College pol icies. He concluded that the appropriate sanction was a two-semester suspension , finding that "this is a case in which Jane Roe articulated that John Doe may not have been aware that the Incident was not consensual. " The external adjudicator also found that Petitioner "was earnest in his statements at the hearing that he believed that he had consent. " (AR 657-680.)

On July 25, 2016, Dean of Students Miriam Feldblum denied Petitioner's administrative appeal and upheld the consecutive two-semester suspension. (AR 986-995.)

Writ Proceedings

On July 26, 2016, Petitioner filed a petition for writ of admin istrative mandate. On August 23, 2016, the court granted , with conditions, Petitioner's motion for a stay of the administrative action pending court review. The court held a hearing on July 18, 2017. At the conclusion of the hearing , the court ordered the parties to submit supplemental briefing regarding what questions Doe sought to pose to Roe which were not posed , and whether any failure to pose those questions was prejudicial to Roe.

On October 16, 2017, the court issued its decision granting the writ petition. The court found that Petitioner had not received a fair hearing because Petitioner did not have any opportunity to question Jane Roe directly or indirectly, and the inability to question Roe was prejudicial to Petitioner. In analyzing the issue of prejudice, the court stated in part:

The External Adjudicator concluded that even crediting Doe's version of events -Roe placed Doe's hand on her vaginal area- Roe still did not manifest clear consent. The EA apparently did not find the discrepancy in Roe's account of the incident significant and did not discuss it when evaluating credibility. It is difficult to discern whether the EA would have reached a different conclusion had Roe been asked to explain the discrepancy prior to, or at the hearing.

The EA appears to have misunderstood the policy allowing Petitioner to suggest additional questions to be asked in response to the Title IX Coordinator's determination. The EA did not analyze whether the questions were appropriate and should be posed to Roe. (AR 441) Further, Respondent appears to have

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told Roe she could answer Doe's questions in advance in writing, a procedure not found in either the 2013 or 2016 Pomona policy. Finally, the Complainant did not attend the hearing personally, or through Skype, even though the hearing date was arranged to accommodate Roe's schedule. Petitioner was unable to ask the EA to pose questions to Roe at the hearing. It is entirely unclear whether the EA would have made the same credibility determinations had Roe been questioned. The court finds that cumulatively, these conditions were prejudicial to Petitioner and denied him a fair hearing. (Mot. Exh . 3.)

The court entered a judgment granting the writ on November 2, 2017. Respondent filed a return on December 19, 2017. Petitioner objected to the return. On February 9, 2018, Respondent filed an amended return stating that Respondent had set aside and vacated the findings Respondent issued against Petitioner.

Petitioner filed his motion for fees on January 3, 2018. The court has received Respondent's opposition and Petitioner's reply.

On March 2, 2018, two days before the hearing, Respondent filed and served a 5-page sur-reply. Respondent did not request leave to file a sur-reply. The court is not persuaded that Petitioner's reply raised issues that justified a sur-reply. The court does not consider the sur-reply, but Respondent may respond orally at the hearing .

Because the court does not consider the sur-reply, Petitioner's request to file an opposition to sur-reply is denied. The court does not consider the opposition to sur­reply filed by Petitioner on March 5, 2018.

Analysis

An award of attorney fees is appropriate "to a successful party ... in any action which has resulted in the enforcement of an important right affecting the public interest." (CCP § 1021.5.) The three factors necessary to support an award of attorney fees to a successful party pursuant to section 1021.5 are: "(1) [the] action has resulted in the enforcement of an important right affecting the public interest,' (2) a significant benefit, whether pecuniary or nonpecuniary has been conferred on the general public or a large class of persons and (3) the necessity and financial burden of private enforcement are such as to make the award appropriate." (In re Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1214.)

Petitioner was the successful party as the court granted the writ petition. In its opposition brief, Respondent does not challenge the third element concerning the necessity and financial burden of private enforcement, which was briefed by Petitioner. (See Sehulster Tunnels/Pre-Con v. Traylor Brothers, Inc. (2003) 111 Cal.App.4th 1328, 1345, fn. 16 [failure to address point is "equivalent to a concession"].) The court finds

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that the third element is satisfied.2 The first and second elements under section 1021.5 are at issue.

Enforcement of Important Right Affecting the Public Interest

"The first prong of the section 1021.5 test ... requires a determination of 'the 'strength' or 'societal importance' of the right involved. That right may be constitutional or statutory, but it must be 'an important right affecting the public interest'-it 'cannot involve trivial or peripheral public policies.' Where, as here, the right vindicated is conferred by statute, 'courts should generally realistically assess the significance of that right in terms of its relationship to the achievement of fundamental legislative goals."' (Roybal v. Governing Bd. of Salinas City Elementary School Dist. (2008) 159 Cal.App.4th 1143, 1148.)

There is an important right affecting the public interest that college students accused of sexual misconduct in Title IX proceedings receive a fair hearing. Respondent's administrative proceedings are subject to review under section 1094.5, which in turn requires the court to assess "whether there was a fair trial." (See Doe v. University of Southern California (2016) 246 Cal.App.4th 221, 239-240 [discussing fair trial requirement].) In this case, the court found that Petitioner had not received a fair hearing because Petitioner did not have any opportunity to question Jane Roe directly or indirectly, and the inability to question Roe was prejudicial to Petitioner.

Respondent argues that the writ did not enforce an important right affecting the public interest because the College's Sexual Misconduct Policy at the time provided for two opportunities for indirect questioning between the parties, and the procedural error occurred because of circumstances unique to this case. Further, Petitioner did not seek any changes in the College's policies, and the court did not find any deficiencies in the College's policies. (Oppo. 4.)

While the court's ruling was based largely on the circumstances of the case, it enforced a right to a fair hearing in Title IX proceedings. That right is clearly important and it affects the public interest in fair Title IX proceedings. The first element is satisfied.

2 A litigant's nonpecuniary interests do not affect its eligibility for section 1021.5 fees under the necessity and financial burden requirement. (In re Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1217.) "An award on the 'private attorney general' theory is appropriate when the cost of the claimant's legal victory transcends his personal interest, that is, when the necessity for pursuing the lawsuit placed a burden on the plaintiff 'out of proportion to his individual stake in the matter."' (Woodland Hills Residents' Ass'n, Inc. (1979) 23 Cal.3d 917, 941 .) Clearly, private enforcement was necessary. Subject to further argument about the amount of Petitioner's fees (see below), it appears that the cost to Petitioner of this action transcended his personal pecuniary stake.

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Significant Publ ic Benefit Conferred on General Public or a Large Class of Persons

To obtain an award under Code of Civil Procedure section 1021 .5, a party must also show that its action conferred a significant public benefit on the general public or on a large class of persons. A significant benefit may be pecuniary or non-pecuniary and need not be concrete to support a fee award. (Braude v. Automobile Club of Southern California (1986) 178 Cal.App.3d 994, 1013.)

"The trial court determines the significance of the benefit, and the group receiving it, 'from a realistic assessment, in light of all the pertinent circumstances, of the gains which have resulted in a particular case. The courts are not required to narrowly construe the significant benefit factor. 'The 'extent of the public benefit need not be great to justify an attorney fee[s] award .' And 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 Association v. City of Indio (2014) 230 Cal.App.4th 521 , 543.)

On the other hand , the public benefit must be something more than the mere proper interpretation of law in a particular instance. "Of course , the public always has a significant interest in seeing that legal strictures are properly enforced and thus, in a real sense, the public always derives a 'benefit' when illegal private or public conduct is rectified. Both the statutory language ('significant benefit') and prior case law, however, indicate that the Legislature did not intend to authorize an award of attorney fees in every case involving a statutory violation . We believe rather that the Legislature contemplated that in adjudicating a motion for attorney fees under section 1021 .5, a trial court would determine the significance of the benefit, as well as the size of the class receiving benefit, from a realistic assessment, in light of all the pertinent circumstances , of the gains which have resulted in a particular case. " (Robinson v. City of Chowchilla (2011) 202 Cal.App.4th 382, 397, quoting Woodland Hills Residents Assn. , Inc. v. City Council (1979) 23 Cal.3d 917, 939-940).

Courts have found a significant public benefit in the absence of a published decision . (See, e.g. , Schmidt v. California Highway Patrol (2016) 1 Cal.App.5th 1287, 1299; Gregory v. State Board of Control (1999) 73 Cal.App.4th 584, 599.) Moreover, "the fact that litigation enforces existing rights does not mean that a substantial benefit to the public cannot result. Attorney fees have consistently been awarded for the enforcement of well-defined, existing obligations." (Otto v. LAUSD (2003) 106 Cal.App.4th 328, 335.)

"A tangible asset or a concrete gain does not have to be present to satisfy the requirement that the action confer a significant benefit; rather, the effectuation of a fundamental constitutional or statutory policy may be present." (Ange/heart v. City of Burbank (1991) 232 Cal.App.3d 460, 467.)

Petitioner argues that this action conferred a significant benefit on college students wrongfully denied their due process rights , such as the right to question and

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examine accusers, even if indirectly, in Title IX proceedings. Petitioner argues that by enforcing Petitioner's right to a fair hearing, a benefit was conferred not only on Petitioner but on all college students in California. (Mot. 8-10.) Respondent argues that any gains achieved by Petitioner were personal. Respondent argues that the writ corrected a procedural error resulting from a unique set of facts that is unlikely to recur. (Oppo. 4-7.)

A primary effect of the lawsuit was personal to Petitioner. However, fees may not be denied to Petitioner solely on that basis. (See Indio Police Command Unit Association v. City of Indio (2014) 230 Cal.App.4th 521 , 543.) The court must assess, in light of all the pertinent circumstances, the gains which have resulted from the writ, the significance of the benefit, and the size of the class receiving benefit.

The 2016 Policy that applied in this case allows the accused student, after reviewing the results of the investigation , to request in writing that the external adjudicator "overturn the determination of the Title IX Coordinator's assessment based on improper investigative procedures." As part of this procedure, a party may pose "follow-up issues or questions for any witness [or] the Complainant. " (AR 102.) Further, the "Complainant and Respondent may be present at the hearing if they choose or they may choose to participate in the hearing remotely. However, neither party shall be allowed to directly question or cross-examine the other during the hearing. Five (5) calendar days prior to the hearing, questions, if any, shall be submitted to the External Adjudicator by both parties in writing, who will then decide whether those questions are relevant to the matter and in compliance with Title IX requirements. " (AR 106)

In finding prejudice to Petitioner, the court found that the External Adjudicator appeared to have misunderstood the policy allowing Petitioner to suggest additional questions to be asked in response to the Title IX Coordinator's determination. However, this was not the only issue in Respondent's interpretation and implementation of its policy. Respondent appeared to have told Roe she could answer Doe's questions in advance in writing , a procedure not found in either the 2013 or 2016 Pomona policy. Further, Roe did not attend the hearing personally, or through Skype, even though the hearing date was arranged to accommodate Roe's schedule. Respondent interprets its policy as not requiring the complaining witness to appear at the hearing , despite the fact its policy nominally allows the accused to submit questions to be posed to the complainant five days prior to the hearing. Further, the administrative appeal process as implemented by Respondent did not rectify th is problem.

Petitioner highlighted discrepancies in Roe's statements during his argument made at the administrative hearing. (See Mot. Exh. C at 16, citing AR 753, 808-809, 114-115.) Furthermore, in his appeal of the External Adjudicator's decision, Petitioner also discussed discrepancies in Roe's version of events, as recalled by Investigator Fellers. Petitioner argued that he was denied a fair hearing because he "was denied any opportunity to confront or examine the witnesses either directly or indirectly. " (~ee Amended Petition Exh. 1 Oat 7.) Petitioner requested that the Dean of Students review

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the transcript and evidence, and find that the hearing procedure was unfair and did not comply with Title IX or the College's policy. (Id. at 9.)

On July 25, 2016, Dean of Students Miriam Feldblum denied Petitioner's administrative appeal and upheld the consecutive two-semester suspension. (AR 986-995.) Dean Feldblum acknowledged Petitioner's arguments that the hearing was unfair because Petitioner never had the opportunity to question Roe, directly or indirectly. She found that the Policy required Petitioner to object earlier in the process to the investigative procedures. (See Amended Petitioner Exh. 11 at 4.) She also found that the Policy did not require Roe to participate in the hearing, and that the External Adjudicator followed the hearing procedures. She also found that the External Adjudicator's analysis of the facts was "thorough, thoughtful, impartial , measured, and based in the specificity of the case." (Id. at 6.)

As argued by Respondent, the court did not find that Respondent's policies generally deprive students of a fair hearing. However, the court disagrees with Respondent's argument that this action involved a procedural error "resulting from a unique set of circumstances that is unlikely to recur." (Oppo. 7.) Respondent points out that its Policy "provided for two opportunities for indirect questioning between the parties." (Oppo. 4.) While that may be true, Respondent implemented its Policy in this case in a manner that deprived Petitioner of a fair hearing. This implementation of the Policy was not caused solely by the External Adjudicator. Respondent's administrators oversaw the investigation and made the final decision to uphold the External Adjudicator's decision. Respondent specifically considered and rejected Petitioner's arguments that he was denied a fair hearing because he did not have the opportunity to question Roe, directly or indirectly. Respondent affirmed the External Adjudicator's decision despite being alerted to these procedural errors . Under these circumstances, the court cannot conclude that the factual scenario was unique and unlikely to recur.

Although the parties do not discuss the specific number of students at the College affected by the Sexual Misconduct Policy, it seems clear that a large class of persons - at the least, all students at the College - are affected by this policy. The right to a fair hearing in Title IX sexual misconduct proceedings is an important right, as discussed above. This action alerted Respondent to a procedural error that may recur in implementation of the Policy. In future Title IX proceedings, accused students of the College are likely to face similar complications in questioning the complainant and other witnesses. Based on the procedural history discussed above, it seems reasonable to infer that this writ will have assisted Respondent and its Title IX administrators in assessing whether or not accused students have received sufficient opportunity to question the complainants. Accordingly, this action conferred a significant benefit on a large class of persons.

Respondent's discussion of case law does not support a different conclusion . (See Oppo. 5-7.) Some of these cases primarily involve the third element of whether the financial burden of private enforcement transcended the petitioner's personal pecuniary interest. (See e.g . Bell v. Vista Unified School Dist. (2000) 82 Cal.App.4th

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672, 691 [even if the petitioner conferred as significant public benefit, he did not show his expenses were disproportionate to his personal financial stake]; Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1170-71 ["this action was brought not to benefit the public, but as a means of vindicating Weeks's own personal rights and economic interest."].)

The Weeks court relied on Flannery v. California Highway Patrol (1998) 61 Cal.App.4th 629, which was also cited by Respondent. Flannery denied section 1021 .5 fees based , in part, on the following analysis:

Here, the trial court found that plaintiff's lawsuit necessarily conferred a significant benefit on a large class of persons because it sent a message to the CHP and other government agencies that sexual discrimination, sexual harassment, and retaliation in violation of the FEHA will not be tolerated. Plaintiff reiterates that rationale for the fee award in this appeal, urging that each time an important right affecting the public interest is enforced, a benefit is conferred on the public in that future wrongdoers are warned that enforcement is not an empty threat. Carried to its logical conclusion , the reasoning adopted by the trial court and espoused by plaintiff would make the private attorney general doctrine applicable in every case in which a plaintiff successfully sued a public agency for some wrongful conduct, because every such lawsuit would communicate a message to the losing party. Such an expansive reading of the statutory requirement is untenable.

While plaintiff's lawsuit was based on the important right to be free from unlawful discrimination, its primary effect was the vindication of her own personal right and economic interest. The evidence does not support the trial court's finding that the lawsuit conferred a significant benefit on the general public or on a large class of persons within the meaning of section 1021 .5, and the fee award cannot be upheld based on that statute. (Id . at 636-637.)

Here, the circumstances are different than in Flannery. First, the Flannery petitioner sought damages and also alleged a violation of FEHA, which itself authorized a fee award. Thus, in Flannery, the petitioner had a clear personal economic interest. (See Id. at 637.) Further, because fees were available under FEHA, resort to section 1021.5 was unnecessary. (Id . at 638.)

Moreover, the significant benefit in this case is not simply a "cautionary message" to Respondent. (Id. at 636.) As discussed above, Respondent acknowledged but rejected Petitioner's fair hearing arguments in the administrative proceedings. It seems Respondent did not fully understand how its Policy affects the fair hearing rights of accused students. The writ addresses an implementation of Respondent's Policy that is likely to recur and affect all College students covered by the Sexual Misconduct Policy.

The court finds that the action conferred a significant public benefit on the general public or on a large class of persons.

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Reasonable Amount of Attorney's Fees

"The determination of what constitutes a reasonable fee generally 'begins with the 'lodestar,' i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate .... ' [T]he lodestar is the basic fee for comparable legal services in the community; it may be adjusted by the court based on factors including, as relevant herein, (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, (4) the contingent nature of the fee award .... " (Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 154.)

"The verified time statements of the attorneys, as officers of the court, are entitled to credence in the absence of a clear indication the records are erroneous." (Horsford v. Board Of Trustees Of California State University (2005) 132 Cal.App.4th 359, 396.) Apportionment of fees is not required if the fee and non-fee bearing claims are inextricably intertwined. (See Fed-Mart Corp. v. Pell Enterprises, Inc. (1980) 111 Cal.App.3d 215, 227.) Where the plaintiff is successful on his or her claim for relief, it is not important that some of the plaintiff's legal theories used to support that claim were not found meritorious, so long as the plaintiff did prevail. (Soko/ow v. County of San Mateo (1989) 213 Cal.App.3d 231, 249-250.) Duplicative, unnecessary, or excessive work is not compensable. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.)

Attorney fees incurred in an administrative proceeding are compensable under section 1021 .5 if the administrative proceeding is "useful and necessary to the public interest litigation." (Best v. California Apprenticeship Council (1987) 193 Cal.App.3d 1448, 1461; Edna Valley Watch v. County of San Luis Obispo (2011) 197 Cal.App.4th 1312, 1317-20.)

Petitioner claims that he incurred legal fees of $125,726 and paralegal fees of $2,110.25 in preparation of this action. Petitioner asserts that six different attorneys worked on the case. Petitioner also requests a multiplier of 2.0. (Hathaway Deel. ,m 11-12.) Petitioner submits invoices that show hours worked by attorneys on certain dates. However, all descriptions of the work performed under "Professional Services" have been redacted . (Id . Exh . 6.) Petitioner has not clearly explained why this information is redacted , although Petitioner seems to rely on the attorney-client privilege. (See Reply 9.) While Petitioner is not necessarily required to submit unredacted billing records, Petitioner has not described in a declaration the work performed, even in a general way, or justified the hours for each attorney.

Respondent argues that the reasonableness of Petitioner's fees cannot be determined from this evidence. (Oppo. 8-9.) The court agrees that further explanation is required from Petitioner. (See Christian Research Institute v. A/nor (2008) 165 Cal.App.4th 1315, 1320 ["The evidence should allow the court to consider whether the case was overstaffed, how much time the attorneys spent on particular claims, and whether the hours were reasonably expended."].) The court exercises its discretion to

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continue the hearing for supplemental evidence regarding the reasonableness of Petitioner's fee request.

Conclusion

The motion is continued to a date to be selected at the hearing. Petitioner to provide additional evidence of the legal work performed and the reasonableness of the requested hours, for each of the assigned attorneys. The court will also permit Respondent to submit a supplemental brief and/or declaration in response to this evidence, and will set a briefing schedule at the hearing.

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