Private Attorney General, Special Fee Shifting Statutes: UC Davis Student, Whose Suspension Was Overturned Through Administrative Writ Proceeding, Properly Denied CCP § 1021.5 Fees, But Matter Remanded To See If Fees Warranted Under Gov. Code § 800

Appellate Court Disagrees That An Investigation Has To Be Wholly Arbitrary Or Capricious For Section 800 Purposes.

            In Doe v. Atkinson, Case No. A166145 (1^st Dist., Div. 1 Oct. 19, 2023) (published), a lower court in an administrative writ proceeding overturned the one-year suspension of a UC Davis junior for violating sexual harassment principles, but denied his request for attorney’s fees under either the private attorney general statute, CCP § 1021.5, or Government Code section 800, which allows a plaintiff to recover up to $7,500 in fees for arbitrary or capricious actions by a public entity or its officers.  Plaintiff appealed.

            The appellate court affirmed the section 1021.5 fees denial, agreeing that the result in the case did not benefit a significant segment of the public and, at best, only a smaller segment of UC students—the main benefit was Plaintiff’s in overturning the suspension.

            But a different result occurred with respect to the section 800 fee denial.  The lower court erroneously determined that the entire investigatory actions had to be wholly arbitrary and capricious, which it did not believe to be the correct standard and criticizing the “wholly” language to the same effect in Kreutzer v. County of San Diego, 153 Cal.App.3d 62, 78 (1984).  Otherwise, very few section 800 fees would be warranted.  A remand was the “call” on the section 800 issue.