Dorfmanv.Regents of the Univ. of Cal.

D071327 (Cal. Ct. App. Jan. 23, 2018)



JONATHAN DORFMAN, Plaintiff and Appellant, v. THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, Defendant and Appellant.

Charles F. Robinson, Karen J. Petrulakis, Margaret L. Wu and Michael R. Goldstein; Reed Smith and Raymond A. Cardoza, for Defendant and Appellant. Robert P. Ottilie for Plaintiff and Appellant.


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2012-00101760-CU-WM-CTL) APPEAL from a judgment, writ and order of the Superior Court of San Diego County, Judith F. Hayes, Judge. Affirmed in part and reversed in part with directions. Charles F. Robinson, Karen J. Petrulakis, Margaret L. Wu and Michael R. Goldstein; Reed Smith and Raymond A. Cardoza, for Defendant and Appellant. Robert P. Ottilie for Plaintiff and Appellant.

This case represents an extraordinary use of resources in connection with an allegation by a professor at the University of California at San Diego (UCSD) that an undergraduate student, Jonathan Dorfman, copied another student's answers on a midterm exam. The alleged cheating occurred in the spring of 2011. Litigation concerning the allegation commenced in the summer of 2011 and has continued almost unabated since. Dorfman's prior appeal of the trial court's order denying his petition for writ of mandate was adjudicated by this court over two years ago and we now consider UCSD's appeal of the judgment and writ subsequently entered by the trial court.

On September 16, 2015, this court overturned the trial court's denial of Jonathan Dorfman's petition for writ of mandate on the grounds that the Regents of the University of California (Regents) violated Dorfman's due process rights by failing to provide a fair hearing on the charge that Dorfman copied answers on a chemistry midterm exam from another student (Student X). We held that the university's refusal to provide Dorfman with the identity of Student X deprived him of a fair hearing as required under UCSD's own policies. We ordered the trial court to issue a writ directing the Regents to set aside its dismissal of Dorfman from UCSD and to conduct further proceedings consistent with our opinion.

On remand, the trial court entered judgment in favor of Dorfman and issued a peremptory writ of mandate broader than our disposition and remittitur. The trial court's writ directed UCSD to (1) vacate the previous administrative finding and dismissal of Dorfman; (2) inform Dorfman in writing whether it intended to conduct further administrative proceedings against him; (3) provide Dorfman with the name and contact information for student X; and (4) not undertake any further administrative proceedings if Student X cannot be located or asserts that he or she has no recollection of the relevant events. The Regents now appeal the judgment and writ on the grounds that the italicized direction exceeded the trial court's authority under Code of Civil Procedure section 1094.5, subdivision (f). The Regents also challenge the trial court's subsequent award of attorney fees. Dorfman appeals the court's attorney fee award, asserting the award is insufficient, and has also filed a motion for sanctions against the Regents.

Further undesignated statutory references are to the Code of Civil Procedure.

We agree with the Regents that the trial court's order was improper under section 1094.5 and direct the trial court to enter a modified judgment and writ striking the paragraph that directs UCSD to "undertake no further proceedings against Petitioner in connection with this matter" if Student X is found to be unavailable. The judgment and writ are otherwise affirmed. In addition, we reject both parties' challenges to the attorney fee award and deny Dorfman's motion for sanctions.


Our earlier unpublished opinion, Dorfman v. University of California San Diego, et al. (Sept. 16, 2015, D065865) (Dorfman I), contains a detailed description of the events underlying this litigation and is not repeated in great detail here. Of importance, in July 2011, Dorfman was an undergraduate student at UCSD when he was accused by his chemistry professor of cheating on a midterm exam by copying Student X's answers. Because Dorfman was already on academic probation for prior misconduct, he faced dismissal for the alleged violation of the university's academic integrity policy. After he was notified of the professor's accusation, Dorfman denied cheating and requested a hearing under the university's academic integrity policy before an Academic Integrity Review Board (AIRB). Dorfman also retained counsel to assist him. Prior to the hearing, Dorfman's counsel, Robert P. Ottilie, tried repeatedly to obtain the identity of Student X but the university refused to provide the information on the grounds that Student X was not a relevant witness to the proceeding.

The AIRB conducted its hearing on the matter in October 2011 and thereafter found that Dorfman had violated the academic integrity policy. As a result, the Regent's Council of Deans, the body responsible for imposing sanctions under the policy, dismissed Dorfman from UCSD. Dorfman appealed the decisions to the Council of Provosts on various grounds. That body determined that the hearing had been conducted unfairly and suspended Dorfman's dismissal pending the outcome of a new proceeding before the AIRB.

After that decision, Ottilie again sought the identity of Student X. Alternatively, Ottilie asked that Student X's exam form be excluded from the hearing if the university decided to keep the identity of Student X secret. The university dean charged with presiding over the matter, Patty Mahaffey, responded to Ottilie that she would contact Student X to determine if he or she would be willing to participate in the hearing. Ottilie objected to the one-sided communication by Mahaffey and asserted his position that unless Dorfman was provided with equal access to Student X, Student X's exam form should be excluded from the university's evidence. Mahaffey refused to provide Student X's identity and also ruled that the university could use Student X's exam form in its case against Dorfman.

A new hearing took place in April 2012 and, on May 2, 2012, the AIRB again found Dorfman violated the university's academic integrity policy and the Council of Deans again imposed the sanction of dismissal from UCSD. Dorfman appealed the decision to the Regent's Council of Provosts, asserting his due process rights were violated in several ways, including by the university's refusal to provide the identity of Student X, and that the evidence before the AIRB did not support its conclusion that Dorfman cheated. The Council of Provosts rejected Dorfman's challenge and, shortly after, Dorfman filed a petition for writ of mandate against the Regents and UCSD in San Diego County Superior Court.

After briefing and a hearing, the trial court issued a writ of mandate agreeing with Dorfman's assertion that the AIRB's stated evidentiary findings did not support its conclusion that Dorfman had copied Student X's exam answers. The court's order, however, rejected Dorfman's assertion that he had not been afforded a fair process. The trial court ordered the Regents to set aside the AIRB's decision and conduct a rehearing at its option. The Regents then moved for reconsideration or a new trial under section 657. Dorfman also moved for reconsideration and modification of the order, asserting the Regents should have been precluded from conducting further proceedings against him. The trial court granted the Regent's motion, this time concluding there was sufficient evidence to support the AIRB's decision, and again rejecting Dorfman's due process claims.

Dorfman appealed the trial court's order, asserting as he had below that the university violated his right to a fair proceeding by, among other things, refusing to provide the identity of Student X. We agreed with Dorfman that the university's refusal to provide the identity of Student X was a violation of his right to fair process under the Regents' and UCSDs' own policies. In our opinion, filed on September 16, 2015, we reversed the trial court's denial of Dorfman's petition and in the disposition directed the trial court "to issue a writ of mandate requiring UCSD to set aside its dismissal and remanding the matter to UCSD for further proceedings consistent with this opinion."

After our opinion was issued, Dorfman petitioned this court for rehearing. In the petition, he asked this court to address the appellate issues we declined to reach and to modify the disposition to preclude the university from conducting further disciplinary proceedings against Dorfman. We denied the petition.

After this court issued its remittitur, Dorfman filed a peremptory challenge against the judge who heard the petition and the matter was reassigned. Dorfman then filed a status conference brief on January 21, 2016, asking the trial court to "issue a Writ to UCSD ordering them to dismiss all charges against [Dorfman] with prejudice." In the status conference brief, Dorfman also sought costs and an award of attorney fees under section 1021.5. The court set Dorfman's request for judgment for a hearing on June 3, 2016. Dorfman filed a formal motion repeating his request for a judgment and writ requiring UCSD to dismiss all charges against him and asking the court to order UCSD to make accommodations for Dorfman to return "to an upperclassman's physics curricula . . . ."

The Regents opposed Dorfman's motion, asserting the relief sought by Dorfman was outside the scope of the trial court's jurisdiction both on remand and under section 1094.5, subdivision (f). Before the hearing on the motion, the trial court issued a tentative ruling denying Dorfman's motion and finding that the requested judgment was beyond the scope of this court's directive in Dorfman I. Quoting the disposition in our opinion, the tentative ruling indicated the court would enter a judgment as directed by the Court of Appeal and issue "a writ of mandate 'requiring UCSD to set aside its dismissal and remanding the matter to UCSD for further proceedings consistent with this opinion.' "

The court heard argument from both parties on August 19, 2016. At the conclusion of the hearing the court directed Dorfman to submit a narrower proposed judgment than the one accompanying his motion. After both parties submitted competing judgments, the court issued an order granting Dorfman's motion to enter judgment in part. The order stated the court adopted the judgment submitted by Dorfman with a modification.

Because the appellate record does not contain the judgment submitted by Dorfman, it is unclear how the court's order modified Dorfman's proposed judgment.

On October 6, 2016, the court entered judgment in favor of Dorfman and issued a writ of mandate directing the Regents and UCSD to: "1. Forthwith vacate the previous administrative finding that Petitioner had violated the Policy on Integrity of Scholarship and the dismissal of Petitioner from UCSD, and remove any record which may be available to the public of either, and as soon as Petitioner is prepared to resume his studies, re-admit him to UCSD in good standing. [¶] 2. Advise the Court and the Petitioner in writing forthwith by response to this Writ whether you are continuing, or dismissing with finality, any further proceedings arising out of the Petitioner's participation in the Chem 6B midterm exam of May 25, 2011. (Hereinafter referred to as 'the exam.') [¶] 3. Unless you advise that you intend on dismissing all administrative charges against Petitioner, you will forthwith provide to Petitioner's counsel all available identification, location, and contact information you possess, or ever did possess, concerning Student X, and take no further action which in any manner interferes or discourages the effective exercise of Petitioner's right to obtain information from Student X and utilize X as a witness. [¶] 4. In the event that Student X is found to be unavailable to provide testimony relevant to this matter either because he/she is physically unavailable or because he/she asserts that he/she has no recollection of the events relative hereto, then UCSD shall undertake no further proceedings against Petitioner in connection with this matter. [¶] 5. Notwithstanding the above, you shall only resolve the charges brought against Petitioner as permitted under your rules and regulations, as interpreted in accordance with California law, consistent with the Court of Appeal's pronouncement that Petitioner 'refuted the charge that he copied from another student.' "

In Dorfman I we used the word "refute" in the factual and procedural background section of the opinion to describe Dorfman's presentation before the AIRB. We used the word to mean that Dorfman denied the accusations against him. We did not use the word, as Ottilie argued in the trial court proceedings after Dorfman I was issued, to assert a legal conclusion.

The judgment also stated the trial court "retains jurisdiction of the matter to ensure the provisions of this Judgment and the terms of the Writ are properly fulfilled." The judgment awarded costs and set a hearing on Dorfman's request for attorney fees for November 18, 2016. On November 1, 2016, the Regents filed their notice of appeal from the judgment.

Thereafter, Dorfman filed briefing and evidence in support of his motion for attorney fees, seeking fees under section 1021.5 and a lodestar multiplier of three to five. Dorfman asserted Ottilie had performed work on the case valued at $96,290 and his father Neil Dorfman, an attorney, had performed work valued at $89,489. The Regents opposed the award of attorney fees sought by Dorfman, arguing the criteria required under section 1021.5 were not satisfied, there was no basis to apply a lodestar multiplier, and that Dorfman had not shown the necessity or reasonableness of the services performed by Ottilie and his father.

Before the hearing on Dorfman's motion, the court issued a tentative ruling that concluded Dorfman had not shown fees under section 1021.5 were appropriate because the relief obtained was unique to Dorfman. At the hearing, Ottilie contested the court's characterization of the results Dorfman obtained and argued that the case exposed a system-wide policy by the Regents to intentionally conceal the identity of relevant witnesses to disciplinary proceedings. The court stated that despite the tentative in the Regent's favor, the decision was a close one and at the conclusion of argument took the matter under submission. On December 2, 2016, the court issued its order awarding Dorfman $99,090 for Ottilie's fees. Both the Regents and Dorfman appealed the court's December 2, 2016 order.

On December 22, 2016, the Regents also filed a petition for writ of prohibition in this court seeking an order directing the trial court to vacate its October judgment and enter a new judgment providing solely that UCSD is required to set aside the dismissal of Dorfman and remanding to UCSD to conduct proceedings consistent with Dorfman I. We summarily denied the petition.



The Trial Court's Judgment and Writ Was Overbroad

As they did in opposition to Dorfman's motions in the trial court, the Regents contend on appeal that the trial court's writ and judgment improperly expanded on the relief afforded in our disposition in Dorfman I and exceeded the court's jurisdiction under section 1094.5. Dorfman responds that the trial court had jurisdiction to address his request to determine what proceedings by UCSD would be consistent with our opinion, and that section 1094.5 did not preclude the trial court from providing such direction to the Regents.


" 'A reviewing court has authority to "affirm, reverse, or modify any judgment or order appealed from, and may direct the proper judgment or order to be entered, or direct a new trial or further proceedings to be had." (Civ. Proc., § 43.) The order of the reviewing court is contained in its remittitur, which defines the scope of the jurisdiction of the court to which the matter is returned.' " (Ayyad v. Sprint Spectrum, L.P. (2012) 210 Cal.App.4th 851, 859 (Ayyad).) After the remittitur is issued, " '[t]he trial court is empowered to act only in accordance with the direction of the reviewing court; action which does not conform to those directions is void.' (Hampton v. Superior Court (1952) 38 Cal.2d 652, 655, 242 P.2d 1.)" (Ayyad, supra, at p. 859.) This rule is jurisdictional in nature. (Ibid.)

"The issues the trial court may address in the remand proceedings are therefore limited to those specified in the reviewing court's directions, and if the reviewing court does not direct the trial court to take a particular action or make a particular determination, the trial court is not authorized to do so." (Ayyad, supra, 210 Cal.App.4th at pp. 859-860.) "In short, when an appellate court remands a matter with directions governing the proceedings on remand, 'those directions are binding on the trial court and must be followed. Any material variance from the directions is unauthorized and void.' " (Id. at p. 860, emphasis added.) The trial court is accorded some flexibility to implement appellate directions (for example, receiving new evidence to clarify resubmitted issues or where ambiguity exists) so long as the court does not materially depart from the directions. (Butler v Superior Court (2002) 104 Cal.App.4th 979, 982.)

"Whether the trial court correctly interpreted our opinion is an issue of law subject to de novo review." (Ayyad, supra, 210 Cal.App.4th at p. 859.) "Our remittitur directions are contained in the dispositional language of our previous opinion. [Citation.] The trial court's interpretation of those directions is not binding on us. [Citation.] We look to the wording of our directions to determine whether the trial court's order comports with them. [Citation.] When, as in this case, the reviewing court remands the matter for further proceedings, its directions must be read in conjunction with the opinion as a whole." (Ibid.)

In this case, the general law governing the interpretation of appellate directions on remand is further limited by the law governing administrative mandate proceedings. The parties agree that this administrative proceeding is controlled by section 1094.5. Under that statute, mandamus is required where "the respondent has proceeded without, or in excess of, jurisdiction;" where the petitioner was deprived of "a fair trial;" or where there has been a "prejudicial abuse of discretion." (§ 1094.5, subd. (b).) "Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence." (Ibid.) The statute further provides that "[w]here it is claimed that the findings are not supported by the evidence, in cases in which the court is authorized by law to exercise its independent judgment on the evidence, abuse of discretion is established if the court determines that the findings are not supported by the weight of the evidence. In all other cases, abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in the light of the whole record." (§ 1094.5, subd. (c).)

Section 1094.5 also provides direction to a reviewing court when it has determined the administrative agency has taken action that warrants the issuance of a writ. Subdivision (f) states: "The court shall enter judgment either commanding respondent to set aside the order or decision, or denying the writ. Where the judgment commands that the order or decision be set aside, it may order the reconsideration of the case in light of the court's opinion and judgment and may order respondent to take such further action as is specially enjoined upon it by law, but the judgment shall not limit or control in any way the discretion legally vested in the respondent." (§ 1094.5, subd. (f), emphasis added.) Under this provision, "mandamus cannot control the lawful exercise of discretion by an agency." (Levingston v. Retirement Board (1995) 38 Cal.App.4th 996, 1001.)

The statute "expressly limits the remedies a court may order when reviewing administrative orders and decisions. The court can deny the writ or grant it and set aside the decision. If it sets aside the decision, the court can order the agency to take further action, but it cannot 'limit or control in any way the discretion legally vested in' the agency. (Code Civ. Proc., § 1094.5, subd. (f).)" (County of Los Angeles v. Los Angeles County Employee Relations Com. (2013) 56 Cal.4th 905, 933; see Cameron v. Escondido (1956) 138 Cal.App.2d 311, 315 ["Section 1094.5, subdivision [f], Code of Civil Procedure provides that a judgment under a writ of mandate shall not limit or control in any way the discretion legally vested in the respondent. A writ of mandate may not issue to compel an officer or board to act in any particular way except in the performance of ministerial duties and never to control the exercise of discretion unless it has been abused."]; see also Clark v. City of Hermosa Beach (1996) 48 Cal.App.4th 1152, 1174 (Clark); and English v. City of Long Beach (1950) 35 Cal.2d. 155, 159-160 (English).)


As noted, the Regents contend that because this court found procedural error in the proceeding against Dorfman, section 1094.5, subdivision (f) limited the trial court to strictly remanding the matter to USCD. The Regents assert the trial court's order exceeded its authority by mandating that UCSD take no further action against Dorfman if Student X "is found to be unavailable to provide testimony relevant to this matter either because he/she is physically unavailable or because he/she asserts that he/she has no recollection of the events." The Regents argue that because this court did not reach the issue of whether there was insufficient evidence to find against Dorfman without the participation of Student X, the trial court could not direct the outcome of the proceeding in the manner it did. We agree.

Where, as here, an administrative proceeding is reversed because the agency failed to provide a fair proceeding, section 1094.5, subdivision (f) limits a court from directing the outcome of the proceeding and prevents the reviewing court from usurping the "discretion legally vested" in the administrative agency. (Cameron v. Escondido, supra, 138 Cal.App.2d at p. 315.) Clark, supra, 48 Cal.App.4th 1152 aptly illustrates this rule. There, the Second District ruled that the trial court's issuance of a writ of mandate directing the City of Hermosa Beach to grant development permits to a property owner who had not received a fair hearing by the city council was error. (Clark, supra, 48 Cal.App.4th at pp. 1172-1173.)

The Clark court affirmed the trial court's finding that the developer was denied fair process on several grounds, including that one of the voting members of the city council was conflicted and that the council had failed to provide the developer with an opportunity to refute evidence presented at the hearing. (Clark, supra, 48 Cal.App.4th at pp.1172-1173.) The appellate court, however, reversed the trial court's writ directing the city to grant the permit to the developer. The court held that under the California Supreme Court's interpretation of section 1094.5, subdivision (f) in English, supra, 35 Cal.2d 155, the proper remedy was to remand to the city council to conduct a fair hearing, not to order the council to grant the permit. (Clark, at p. 1175.)

In English, the Supreme Court considered whether the trial court's writ directing the reinstatement of police officer was the proper remedy after the court found the civil service board had not provided the officer with a fair hearing because the board had considered evidence not presented at the hearing. (English, supra, 35 Cal.2d at pp. 159-160.) Citing the language of section 1094.5, subdivision (f) (which at the time was labeled subdivision (e)), the English court concluded the trial court "should not have ordered the reinstatement of [the officer] but instead should have remanded the cause to the civil service board for proper proceedings." (Id. at p. 159.)

As in Clark, the error that resulted in our opinion directing the issuance of the writ was procedural. Specifically, in Dorfman I we held that UCSD violated its own procedural requirements in academic misconduct proceedings by refusing to provide Dorfman with Student X's identity. We held that UCSD's failure to disclose the identity of Student X, coupled with the professor's failure to follow UCSD's "Instructor's Guide for Preventing and Processing Incidents of Academic Dishonesty" (Guide), violated Dorfman's right to a fair proceeding. The Guide places the "the responsibility for enforcing academic honesty" on instructors and states instructors are responsible for "promptly confront[ing] any student(s) suspected of academic dishonesty . . . ." The Guide also provides instructors with best practices for minimizing cheating that were not followed in this case, including requiring "students to write their names in ink on all pages of the exam," to "write on their exam their row number and the names of students seated to their left and right," and to "[i]mmediately collect all exam papers . . . ." (Italics added.)

However, we expressly and purposefully did not reach the issue of whether, without Student X's identity, UCSD was required to drop the charges against Dorfman. Thus, the trial court's judgment and writ directing the outcome of any future proceeding against Dorfman in the event Student X is unavailable exceeded the court's authority under section 1094.5, subdivision (f).

Dorfman argues that if Student X is unavailable, our prior opinion necessarily required UCSD to dismiss the proceeding because we found three "elements critical to the spoliation" of evidence: "(1) the charging party (UCSD) had concealed access to evidence (X's memory testimony); (2) it had done so deliberately and illegally; (3) without the concealed evidence, the defending part ([Dorfman]) suffers irreparable prejudice." He asserts because of these "holdings" the trial court "correctly provided in the judgment that if [Student] X were now physically unavailable, or had no memory, no further proceedings could proceed." Dorfman mischaracterizes our holding. We did conclude that the university's failure to provide the identity of Student X along with its failure to follow the best practices outlined for instructors in its Guide constituted a violation of the procedural protections it affords students. We did not, however, conclude that without the identity of Student X, Dorfman would suffer irreparable prejudice.

Although we stated "the location of where Student X sat during the exam, or in this case the identity of Student X to seek that information," was highly relevant and even potentially dispositive of the charge Dorfman faced, we did not—as Dorfman asserts— conclude that the university could not proceed without that information. We decline to do so now. Rather, under section 1094.5, subdivision (f) the university retains its authority on remand to consider whether to proceed with its case against Dorfman, even if Student X is unavailable.

As the Regents point out, even if UCSD had properly disclosed the identity of Student X when Dorfman initially requested that information, neither UCSD nor Dorfman could have compelled Student X to participate in the AIRB proceeding. Even if the withheld evidence was relevant to the proceeding, even highly relevant, that does not lead necessarily to the conclusion that the proceeding must be dismissed without that evidence. Rather, it is within the university's jurisdiction to make that determination. (See County of Los Angeles v. Los Angeles County Employee Relations Com., supra, 56 Cal.4th at p. 933 ["If it sets aside the decision, the court can order the agency to take further action, but it cannot 'limit or control in any way the discretion legally vested in' the agency."].)

As we explained in Dorfman I, and as the trial court's order suggested, we express doubt concerning UCSD's ability to present a sufficient case against Dorfman without knowing if Dorfman sat close enough from Student X to copy from his or her exam. As we stated in Dorfman I, "[r]egardless of how high the odds of the answers matching by coincidence were, the chance existed. [Fn. omitted.] Since there was no allegation or showing by UCSD that Dorfman and Student X were cooperating, evidence that Student X was not seated where Dorfman could see his or her exam could establish the matching answers were that rare coincidence."

The mandate cases Dorfman relies on to assert that "under California law, a court may indicate to an administrative body what is legally required of it" do not support the challenged portion of the writ. Both cases, Ross Gen. Hosp., Inc. v. Lackner (1978) 83 Cal.App.3d 346 and Tripp v. Swoap (1976) 17 Cal.3d 671, concerned a situation where the "record of the administrative proceedings require[d] as a matter of law that a particular determination be made . . . ." (Ross Gen. Hosp., Inc. v. Lackner, supra, 83 Cal.App.3d 346, 355, italics added.) In other words, unlike this case, the administrative agencies in those cases did not have any continued discretion in the outcome on remand. (See id. at p. 355 [determination by trial court that petitioner was exempt from regulation required as a matter of law that the administrative agency issue certificate of exemption]); Tripp v. Swoap, supra, 17 Cal.3d at p. 677 [where denial of disability benefits wrongful as a matter of law because substantial evidence supported finding that the petitioner was entitled to those benefits, the trial court's order directing payment of benefits was proper].)

Dorfman also cites Voices for the Wetlands v. State Water Resources Control Bd. (2011) 52 Cal.4th 499 (Wetlands) and Ashford v. Culver City Unified Sch. Dist. (2005) 130 Cal.App.4th 344 (Ashford) to assert that "a court need not facilitate administrative hearings where, under the particular facts, further proceedings are impermissible on procedural grounds." These cases, however, contain no such holding. In Wetlands, the Supreme Court concluded that the trial court had the authority to remand the proceeding back to the agency before entering judgment to consider whether there was evidentiary support for a particular factual finding made by the agency. (Wetlands, 53 Cal.4th at p. 526.) Ashford reversed a trial court decision remanding an administrative decision based on evidence that did not have a proper foundation. Ashford, however, was later overruled by Wetlands, which determined that section 1094.5, subdivision (e) (the basis for Ashford) did not preclude a remand to consider additional evidence.


The Trial Court's Award of Attorney Fees Was Not an Abuse of Discretion

The Regents next appeal the attorney fee award, arguing that Dorfman failed to satisfy the criteria contained in section 1025.1. Dorfman also challenges the award, arguing that the court erred by failing to award any fees for the legal services contributed by his father and by not awarding a multiplier on the fees awarded for Ottilie's services.


Section 1021.5 provides in relevant part: "Upon motion, a court may 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, or of enforcement by one public entity against another public entity, 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."

This section "codifies the private attorney general doctrine the Supreme Court adopted in Serrano v. Priest (1977) 20 Cal.3d 25" and "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." (Coalition for a Sustainable Future in Yucaipa v. City of Yucaipa (2015) 238 Cal.App.4th 513, 520; see also Vasquez v. State (2008) 45 Cal.4th 243, 250.) "Entitlement to fees under [section 1021.5] requires a showing that the litigation (1) served to vindicate an important public right; (2) conferred a significant benefit on the general public or a large class of persons; and (3) was necessary and imposed a financial burden on plaintiffs which was out of proportion to their individual stake in the matter. [Citation.] The section acts as an incentive for the pursuit of public interest-related litigation that might otherwise have been too costly to bring." (Coalition, 238 Cal.App.4th at pp. 520-521.)

Private attorney general fees are available only to a "successful" party. (Vasquez v. State, supra, 45 Cal.4th at pp. 250-251; Leiserson v. City of San Diego (1988) 202 Cal.App.3d 725, 734; Coalition for a Sustainable Future in Yucaipa v. City of Yucaipa, supra, 238 Cal.App.4th at p. 521.) " 'In determining whether a plaintiff is a successful party for purposes of section 1021.5, "[t]he critical fact is the impact of the action, not the manner of its resolution." [Citation.] [¶] The trial court in its discretion "must realistically assess the litigation and determine, from a practical perspective, whether or not the action served to vindicate an important right so as to justify [a private attorney general] attorney fee award" . . . .' " (Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 566.)

"Regarding the nature of the public right, it must be important and cannot involve trivial or peripheral public policies. The significance of the benefit conferred is determined from a realistic assessment of all the relevant surrounding circumstances. As to the necessity and financial burden of private enforcement, an award is appropriate where the cost of the legal victory transcends the claimant's personal interest; in other words, where the burden of pursuing the litigation is out of proportion to the plaintiff's individual stake in the matter." (Ryan v. California Interscholastic Federation (2001) 94 Cal.App.4th 1033, 1044 (Ryan).)

"The decision whether the claimant has met his burden of proving each of these prerequisites and is thus entitled to an award of attorney fees under section 1021.5 rests within the sound discretion of the trial court and that discretion shall not be disturbed on appeal absent a clear abuse." (Ryan, supra, 94 Cal.App.4th at p. 1044.) "In ruling upon a section 1021.5 fees request, the trial court will exercise ' " 'its traditional equitable discretion.' " ' " (McGuigan v. City of San Diego (2010) 183 Cal.App.4th 610, 623.) "Even assuming the underlying facts are undisputed, it remains the trial court's duty to consider those facts and the circumstances of the case and exercise its discretion in determining whether the requirements were satisfied for an award of attorney fees under section 1021.5, and we can reverse the court's determination only if there is no reasonable basis for it. [Citation.] Furthermore, in reviewing the trial court's decision, we defer to its reasonable inferences when two or more inferences can reasonably be drawn from the undisputed facts." (Carian v. Department of Fish and Wildlife (2015) 235 Cal.App.4th 806, 816.)

In the trial court, the " 'burden is on the party seeking attorney fees to prove that the fees it seeks are reasonable.' " (Center For Biological Diversity v. County of San Bernardino (2010) 188 Cal.App.4th 603, 615.) On appeal, it is the challenging party's burden " 'to prove that the court abused its discretion in awarding fees.' " (Ibid.) However, " '[w]hen we are reviewing an award of attorney fees for appellate work, we need not accord the same degree of deference we would give to rulings that involve the trial court's first-hand knowledge.' " (Gonzalez v. Santa Clara County Department of Social Services (2017) 9 Cal.App.5th 162, 169.)


The Regents contend the trial court abused its discretion by awarding attorney fees under section 1021.5 because there was no basis for the court to conclude that this litigation involved important rights or that it conferred a significant benefit on the public or a large class of persons. The Regents also assert that fees should not have been awarded to Dorfman because the financial burden he undertook to litigate the case was not disproportionate to his own personal financial stake.

With respect to its assertion that no public right was vindicated and that Dorfman had only an individual stake in the litigation, the Regents analogize this case to Ryan, supra, 94 Cal.App.4th 1033 and Pacific Legal Foundation v. California Coastal Commission (1982) 33 Cal.3d 158 (PLF). In Ryan, the petitioner challenged an evidentiary ruling of the California Interscholastic Federation (the governing body for high school athletics) that he was not eligible to play high school basketball. (Ryan, 94 Cal.App.4th at p. 1038-1039.) The trial court granted his petition for writ of mandate seeking to overturn that ruling and awarded attorney fees under section 1021.5. (Id. at p. 1039.) On appeal, this court held the trial court abused its discretion by awarding fees because the litigation was "simply a substantial evidence matter involving [the petitioner's] personal interests" only. (Ryan, supra, 94 Cal.App.4th at p. 1045.) There was no important public right at stake or benefit conferred on the general public or a large class of persons. (Ibid.)

Likewise, in PLF, the Supreme Court held that attorney fees were not properly awarded by the appellate court because "the primary effect of the judgment was to invalidate the particular permit condition imposed" by the Coastal Commission on the grounds that there was not substantial evidence to support the Commission's decision. (PLF, supra, 33 Cal.3d 167, italics added.) "The decision vindicated only the rights of the owners of a single parcel of property. It in no way represent[ed], for example, a ringing declaration of the rights of all or most landowners in the coastal zone . . . ." (Ibid.)

Unlike these cases, Dorfman I did not address Dorfman's claim that the AIRB's findings were not supported by the evidence. Rather, we held that UCSD had failed to follow its own rules, resulting in an unfair proceeding against Dorfman. Dorfman's success, unlike the petitioners in Ryan and PLF, was not based on insufficient evidence to support the administrative agency's determination. Here, the Regents admitted that UCSD had a uniform "procedure" and "policy" to interpret its relevant rules to identify witnesses only if they were a party to the misconduct, or were supportive of the university's claims. Indeed, at the hearing on Dorfman's attorney fees motion, the Regents' counsel stated "this really was a dispute on the issue of what is a relevant party. Regents had one interpretation, which we always followed in our statute . . . ."

The Regents also point to LaGrone v. City of Oakland (2011) 202 Cal.App.4th 932 (LaGrone) and Flannery v. California Highway Patrol (1998) 61 Cal.App.4th 629 (Flannery). LaGrone affirmed the trial court's denial of fees, concluding there was no abuse of discretion in the court's decision that petitioner had not shown his suit to reinstate his employment with the City of Oakland demonstrated "an adequate public, rather than personal, benefit to support an award under section 1025.1." (LaGrone, at. p. 946.) In Flannery, the court of appeal reversed the award of fees under section 1025.1 in litigation that had concluded a California Highway Patrol (CHP) officer has been discriminated against under the Fair Employment and Housing Act (Gov. Code, § 12900 et seq.). The trial court's only basis for concluding the litigation had benefitted a large class of persons was 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." (Flannery, supra, at p. 636.) In LaGrone and Flannery, there was no evidence that the administrative agency's conduct impacted a large number of people. In contrast, here, the trial court could properly infer from UCSD's own statements that it used an unfair interpretation of its witness rule in hundreds of academic dishonesty cases each year.

Additionally, in support of his motion for attorney fees under section 1021.5, Dorfman submitted the declaration of Jon Carlos Senour, the UCSD official responsible for training student advocates for academic disciplinary proceedings. Senour stated that in his training of student advocates he intends to "make them aware of [this court's] opinion." Senour also stated that the opinion "will help to secure fair administrative proceedings in academic misconduct cases in the future." This evidence supported the trial court's conclusion that Dorfman's petition resulted in UCSD properly defining a relevant witness under its own procedural rules. This change benefits all students facing academic misconduct proceedings, which UCSD's Academic Integrity Coordinator estimated was over 600 students each year. This was a sufficient public benefit to support the trial court's award.

Under UCSD's academic integrity policy, during a review hearing a student accused of academic dishonesty may be represented by a student advocate, but not by an attorney.

There is no evidence in the record indicating that other universities in the Regents system had similar unfair policies concerning relevant witnesses that were corrected as a result of his case. However, Dorfman did present evidence that the result in this case garnered media attention in the academic community and calls by student advocates for universities to ensure fair proceedings. This evidence further supported the trial court's determination that fees under section 1021.5 were appropriate.

The Regents also argue that because our decision was not published, there was no significant benefit. While publication is "strong evidence on that question," it is not determinative. (Los Angeles Police Protective League v. City of Los Angeles (1986) 188 Cal.App.3d 1, 12.) Publication is "only one factor to be considered" and does not mandate the denial of the fee award here. (Serrano v. Stefan Merli Plastering Co., Inc. (2011) 52 Cal.4th 1018, 1029.)


The Regents also assert that Dorfman was not entitled to an award of attorney fees under section 1021.5 because the financial burden imposed on Dorfman to litigate this case was not disproportionate to Dorfman's personal stake in the outcome. The Regents contend that the benefit Dorfman sought, a college degree, is a significant personal stake that balanced the cost of the litigation to Dorfman.

This second prong of the inquiry under section 1021.5, "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. ' "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.' [Citation.]" ' [Citation.] 'This requirement focuses on the financial burdens and incentives involved in bringing the lawsuit.' " (In re Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1215 (Whitley).)

In Whitley, the "Supreme Court adopted a specific method for evaluating the financial burdens and incentives involved in pursuing a lawsuit—namely, a cost-benefit analysis in which the expenses of the litigation are compared with the 'financial benefits that the litigation yields or reasonably could have been expected to yield.' " (Robinson v. City of Chowchilla (2011) 202 Cal.App.4th 382, 401.) "The benefits side of the equation contains two components, which are multiplied by one another. First, the court must determine the monetary value of the benefits obtained by the successful party. This determination is based on ' "the gains actually attained" ' and not on the gains sought. [Citation.] Second, the court must estimate ' "the probability of success at the time the vital litigation decisions were made . . . ." ' " (Id. at p. 402.) "The costs side of the cost-benefit analysis is based on the actual costs of the litigation, which include attorney fees, deposition costs, expert witness fees, and other expenses required to bring the case to fruition." (Ibid.)

Although the litigation may someday result in Dorfman's reinstatement to UCSD and graduation, that outcome has been uncertain throughout the litigation and remains so today. Rather, as discussed, the success that Dorfman obtained was a ruling that the university failed to follow its procedural rules thereby violating Dorfman's right to a fair proceeding. This ruling does not guarantee that Dorfman will not again face dismissal or ultimately graduate from UCSD. Rather, the only benefit Dorfman obtained, as he states in his brief, "is simply a fair process." There is no indication at this late stage of this longstanding litigation that Dorfman will obtain a degree from UCSD. Any calculation of the benefit to Dorfman must be substantially discounted by this reality. On the other side of the equation, Dorfman's costs have been substantial and the Regents do not contend otherwise. Given these facts, the trial court did not abuse its discretion by finding this prong of the 1021.5 analysis satisfied.

In its briefing, UCSD represents explicitly that Dorfman will be permitted to re-enroll once the writ and judgment are final.

We also reject the Regents assertion that the burden Dorfman undertook in pursuing this mandamus litigation is offset by the separate complaint Dorfman filed against the Regents after we issued our opinion in Dorfman I. Unlike the cases the Regents rely on to support its contention that civil damages precluded an award of attorney fees, the success that supports the trial court's award of fees in this case occurred prior to the filing of Dorfman's civil damages claims. (Cf. Ryan, supra, 94 Cal.App.4th at pp. 1046-1047 [petitioner sought civil damages from the outset of his case and his "litigation goal was always to obtain athletic eligibility and compensatory damages."] and Luck v. Southern Pacific Transportation Co. (1990) 218 Cal.App.3d 1, 30 [trial court's denial of attorney fees motion after jury trial appropriate where jury awarded plaintiff almost $500,000 in damages]).)


In his cross-appeal, Dorfman asserts the trial court abused its discretion by (1) failing to award attorney fees for the legal services of his father, Neil G. Dorfman, and (2) not awarding a lodestar multiplier.

"Once the trial court has found, as the court did in this case, that the litigation conferred a public benefit warranting an award of attorney fees, the amount of fees to be awarded under section 1021.5 is within the trial court's discretion." (Save Our Uniquely Rural Community Environment v. County of San Bernardino (2015) 235 Cal.App.4th 1179, 1184.) "To the extent a trial court is concerned that a particular award is excessive, it has broad discretion to adjust the fee downward or deny an unreasonable fee altogether." (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1138; see also Save Our Uniquely Rural Community Environment v. County of San Bernardino, supra, 235 Cal.App.4th at p. 1186.) "When the trial court substantially reduces a fee or cost request, we infer the court has determined the request was inflated. [Citation.] The trial court is not required to issue a statement of decision." (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1323.)

On appeal, the "party seeking fees has the burden to prove that the trial court abused its discretion in awarding less than the amount it sought." (Save Our Uniquely Rural Community Environment v. County of San Bernardino, supra, 235 Cal.App.4th at p. 1184.) Further, we do "not reweigh on appeal a trial court's assessment of an attorney's declaration. [Citation.] 'The trial court, with declarations and supporting affidavits, [is] able to assess credibility and resolve any conflicts in the evidence." (Christian Research Institute v. Alnor, supra, 165 Cal.App.4th at p. 1323.) The trial court's findings "are entitled to great weight. Even though contrary findings could have been made, an appellate court should defer to the factual determinations made by the trial court when the evidence is in conflict." (Ibid.)

Dorfman has failed to show that the trial court abused its discretion. As the Regents point out, there were appropriate bases for the trial court's denial of the request for Neil Dorfman's fees. The declaration and accounting records submitted by Neil Dorfman, who has never made an appearance in the case, were duplicative of those submitted by Ottilie. Further, because Neil Dorfman is the petitioner's father, many of the tasks contained in his time records are more properly categorized as helping his son evaluate Ottilie's advice and reviewing Ottilie's work on behalf of his son. (See Christian Research Institute v. Alnor, supra, 165 Cal.App.4th at p. 1322 [The trial court has "broad discretion to . . . deny an unreasonable fee altogether"], internal quotations omitted.) Finally, it was appropriate for the trial court to deny Dorfman's request for his father's fees because the public would bear the burden of payment in this case. (See San Diego Police Officers Assn. v. San Diego Police Department (1999) 76 Cal.App.4th 19, 24 [affirming negative multiplier, in part, because "the award of fees would ultimately be borne by the taxpayers."].)

Dorfman makes much of the fact that no reported decision has affirmed a trial court's complete denial of one counsel's request for fees while affirming another counsel's request. But the circumstance of one counsel being the successful party's father is unusual and equally unprecedented in reported decisions.

Dorfman has also not shown the denial of his request for a multiplier was an abuse of discretion. "[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. [Citation.] The purpose of such adjustment [or multiplier] is to fix a fee at the fair market value for the particular action. In effect, the court determines, retrospectively, whether the litigation involved a contingent risk or required extraordinary legal skill justifying augmentation of the unadorned lodestar in order to approximate the fair market rate for such services. The ' "experienced trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong." ' " (Ketchum v. Moses, supra, 24 Cal.4th at p. 1132.)

Dorfman argues a multiplier should have been awarded by the trial court because the case presented novel and difficult issues and the skill displayed by his "legal team was extraordinary." He concedes Ottilie was not working on a contingency, but argues his father's services were contingent "as a practical matter" because Dorfman cannot afford to repay his father. Finally, Dorfman argues that the success his attorneys achieved in this case supports a multiplier. These arguments, however, show at most grounds that would have permitted the trial court to award a multiplier. They do not establish that the court abused its discretion by rejecting them. (Save Our Uniquely Rural Community Environment v. County of San Bernardino, supra, 235 Cal.App.4th at p. 1188.)

At the hearing on attorney fees, the court noted it was a close case and that it could go either way. It is clear from the proceedings that the trial court thoughtfully considered Dorfman's motion and carefully evaluated the evidence before it in making its final ruling. On this record, Dorfman has not shown the amount of fees awarded by the trial court fell outside the court's wide discretion.


Dorfman's Motion for Sanctions

Dorfman has filed a motion for sanctions asserting that the Regents' appeal is frivolous and was taken only to "delay the effect of an adverse judgment." An appeal should be deemed frivolous " 'only when it is prosecuted for an improper motive—to harass the respondent or delay the effect of an adverse judgment—or when it indisputably has no merit—when any reasonable attorney would agree that the appeal is totally and completely without merit.' " (In re Reno (2012) 55 Cal.4th 428, 513, italics omitted; In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.)

" '[A]ny definition [of a frivolous appeal] must be read so as to avoid a serious chilling effect on the assertion of litigants' rights on appeal. Counsel and their clients have a right to present issues that are arguably correct, even if it is extremely unlikely that they will win on appeal. An appeal that is simply without merit is not by definition frivolous and should not incur sanctions. Counsel should not be deterred from filing such appeals out of a fear of reprisals. . . . In reviewing the dangers inherent in any attempt to define frivolous appeals, . . . courts cannot be "blind to the obvious: the borderline between a frivolous appeal and one which simply has no merit is vague indeed . . . . The difficulty of drawing the line simply points up an essential corollary to the power to dismiss frivolous appeals: that in all but the clearest cases it should not be used." [Citation.] The same may be said about the power to punish attorneys for prosecuting frivolous appeals: the punishment should be used most sparingly to deter only the most egregious conduct.' " (In re Reno, supra, 55 Cal.4th at p. 513.)

As discussed, the Regents appeal of the judgment and writ, which resulted from Dorfman's decision to seek relief in the trial court broader than the disposition contained in Dorfman I, is meritorious and was not taken in bad faith. We are not persuaded by Dorfman's additional assertion that the Regents should have appealed only the portion of the judgment that exceeded the disposition. The Regents opening brief, and its prior petition for writ of prohibition seeking to vacate the judgment, make clear its appeal focused solely on the portion of the judgment we now strike. (See Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764 [" 'Obvious considerations of fairness in argument demand that the appellant present all of his points in the opening brief.' "].) Dorfman, however, took no step in the trial court or this court to obtain relief from the automatic stay on the portions of judgment and writ not challenged by the Regents. Dorfman's motion for sanctions is denied.

Dorfman's related requests for judicial notice are also denied. --------


The judgment and writ are reversed with directions to modify the judgment and writ to strike paragraph four. The order awarding attorney fees is affirmed. Dorfman's motion for sanctions is denied. The parties are to bear their own costs of appeal.