1 Jonathan D.

Miller (SBN 220848)

jonathan(a);nps-law .com
2 Alison M.Bernal (SBN 264629)
ali on<mnps-law.corn
3 NYE, P"l ABODY, STIRLING, HALE & MILLER, LLP
33 West Mission Street, Suite 201
4 Santa Barbara, California 93 101
Te lephone: (805) 963-2345
5 Facsimile: (805) 563-5385
6 Attorneys for Respondents, THE REGENTS OF THE
UNIVERSITY OF CALIFORNIA, UNIVERSITY OF
7 CALIFORNIA, SANTA BARBARA, et al.
8
SUPERIOR COURT OF CALIFORNIA
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COUNTY OF SANTA BARBARA
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JOHN DOE, an individual, CASE NO.: 16CV04758
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NOTICE OF ENTRY OF ORDER RE: PETITIONER'S MOTION FOR ATTORNEY FEES AND
RESPONDENT'S MOTION TO STRIKE OR TAX COSTS
 1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
2 PLEASE TAKE NOTICE that the hearing on Petitioner's Motion for Attorney's

3 Fees and Respondent's Motion to Strike or Tax Costs was held on October 23, 2018, in
4 Department 3 of Santa Barbara Superior Court, Honorable Thomas Anderle presiding.
5 Jonathan Miller appeared for Respondent, The Regents of the University of California, and
6 Robert Ottilie appeared for Petitioner John Doe. The Court denied Petitioner's Motion for
7 Attorney's Fees. The Court granted in part and denied in part Respondent's Motion to
8 Strike or Tax Costs, taxing $5,239.12 for total permissible costs of$4,714.91. A true copy
9 of the Court's tentative ruling, which was adopted as the final ruling, is attached hereto as
10 Exhibit A.
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NOTICE OF ENTRY OF ORDER RE: PETITIONER' S MOTION FOR ATTORNEY FEES AND
RESPONDENT'S MOTION TO STRIKE ORT AX COSTS
EXHIBIT A
 THE SUPERIOR COURT OF CALIFORNIA

CC)LJNTY C}F SANTA BARBARA

TENTATIVE RULING

Judge Thomas Anderle

Department 3 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION

John Doe v. University of California Santa Barbara, et al.

Case No: 16CV04758

Hearing Date: Tue Oct 23, 2018 9:30
Nature of Proceedings: Motion Attorney Fees; Motion Strike or in the
Alternative, Tax Pet's Req. Trial Costs
Petitioner's motion for private attorney general attorneys' fees
Respondents' motion to tax costs
ATTORNEYS:
Robert P. Ottilie for Petitioner
Jonathan D. Miller I Alison M. Bernal of Nye, Peabody, Stirling, Hale &
Miller, LLP for Respondents.
RULINGS:
1. Petitioner's motion for private attorney general fees is denied. The
Court has taken judicial notice of the decision requested by Mr. Ottilie;
it is an important and correct decision; but it has no impact on the
motion for fees in this case.
2. Respondents' motion to tax costs is granted in part and denied in
part. The Court will tax the total amount of $524.21 from the claimed
costs totaling $5,239.12, for total permissible costs of $4,714.91.
Background:
Petitioner John Doe was admitted to the University of California, Santa
Barbara (UCSB) when he was 17 years old, and was registered to begin
classes on September 23, 2016. UCSB is owned and operated by
respondent Regents of the University of California (Regents). On
August 13, 2016, plaintiff was involved in an argument with his then-
girlfriend, Jane Doe, also then 17 years old, after plaintiff discovered
that Jane had illegally hacked into his private social media accounts.
Jane is not a student at UCSB. Petitioner and Jane are both residents of
San Diego County. The incident took place in the City of San Diego.
When Petitioner observed Jane videotaping the argument using her cell
phone, there was a scuffle for the phone. The video left an impression
 that Doe may have hit her, which Doe denied. Petitioner contended that
Jane is a very jealous and controlling person and that after the incident
she repeatedly threatened to make the video recording public if
Petitioner had any social contact with female students at UCSB.
In late August 2016, Petitioner attended a week-long orientation
program at UCSB for incoming freshman. Jane threatened to put her
video on the Internet if Petitioner had social contact with other females.
When Petitioner returned to San Diego, Jane accused him of flirting with
another woman. On August 25, 2016, Jane posted on her public Twitter
account an edited version of the video recording in which it appeared
that Petitioner hit her, as the video goes dark. On the posted video, Jane
stated that 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 UCSB
police department. On August 30, 2016, detectives from the UCSB
police force drove to San Diego and arrested plaintiff. That same day,
UCSB's Vice Chancellor of Student Affairs, Margaret Klawunn, without
contacting Petitioner to hear his side of the story, issued an interim
suspension order and had it delivered to Petitioner while he was being
fingerprinted at the juvenile facility in San Diego. The order barred
Petitioner from entering the UCSB campus, on the ground that
he posed a potential threat to the UCSB community. Interim
suspensions are governed by section 105.08 of the Regents'
Policies of Student Conduct, which provides:
Interim Suspension: Exclusion from classes, or from other
specified activities or areas of the campus, as set forth in the
Notice of Interim Suspension, before final determination of an
alleged violation. 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 or at
official University functio.n s, or other disruptive activity
incompatible with the orderly operation of the campus. A
student placed on Interim Suspension shall be given prompt
notice of the charges, the duration of the Interim Suspension,
and the opportunity for a prompt hearing on the Interim
Suspension. Interim Suspension shall be reviewed by the
Chancellor within twenty-four hours. If a student is found to
have been unjustifiably placed on Interim Suspension, the
University is committed to a policy whereby reasonable
efforts are taken to assist an individual who has been
disadvantaged with respect to employment or academic
status.
On September 2, 2016, the judge of the Juvenile Division of the San
Diego Superior Court found that Petitioner was not a threat to anyone,
including Jane, and ordered him released to the custody of his mother.
By September 14, 2016, two of three counts against John Doe had been
dismissed by the District Attorney. In late October, the one remaining
charge was dismissed by the Superior Court Judge, after Jane admitted
that Petitioner had not hit her. Prior to the dismissal of the charges,
Petitioner notified UCSB that the juvenile court had found that he was
not a threat to anyone, but no action was taken by the University.
Instead, Petitioner was informed by Sandra Vasquez, the Director of
Judicial Affairs at UCSB, that a hearing had been scheduled for
September 15, 2016 (later changed to September 16) to address
Petitioner's request to set aside the interim suspension order so that he
could move into his freshman dorm on September 17.
Petitioner attended the hearing, along with his attorney, and testified at
the hearing. Although Petitioner was told that a decision would be made
at the end of the hearing as to whether the interim suspension order
would be lifted, that did not happen. Rather, Petitioner was notified by
Vice Chancellor Klawunn, in a letter dated September 22, 2016, that the
interim suspension order would remain in effect pending a full
investigation by the UCSB Title IX Office and that, if he was charged
with an offense, this would be followed by a hearing in which plaintiff
would be allowed to present evidence in his defense.
On October 21, 2016, Petitioner filed a petition and complaint for
declaratory relief, peremptory writ of mandate, alternative writ of
mandate, and injunction. On December 14, 2016, Doe filed a first
amended petition and complaint, adding a cause of action for
administrative mandamus. Petitioner named the University of California,
Santa Barbara, and the Regents of the University of California as
respondents/ defendants. The First Amended Petition contended, and
sought declarations stating, that Regents had no jurisdiction to
investigate the incident because it took place in San Diego before he
attended UCSB and did not involve a UCSB student, and that the interim
suspension was not supported by substantial evidence, both with
respect to whether he constituted a threat to the UCSB community, and
whether the suspension was minimally restrictive. It further sought
orders and injunctive relief restoring him to full status as a student,
removing from his record any reference to the interim suspension,
termination of the interim suspension pending conclusion of the
investigation, and retention of jurisdiction to oversee UCSB's
compliance.
UCSB commenced a Title IX investigation on October 25,
2016. On January 3, 2017, the Court denied Petitioner's
request for a stay of the interim suspension order on the
ground that there was no final administrative order. On
February 3, 2017, Petitioner filed a petition for writ of
mandamus with the Second District Court of Appeal. On March
13, 2017, the Court of Appeal issued an order indicating this
Court should reconsider its January 2017 order.
On March 21, 2017, this Court found that UCSB's inaction over a long
period of time was unreasonable and arbitrary, the interim suspension
was particularly egregious given the UCSB's delay in completing its
Title IX investigation, and the balance of harms weighed in favor of
granting a preliminary injunction. The Court preliminarily enjoined
UCSB from continued enforcement of the interim suspension and
stayed the suspension, which injunction was to remain in effect until
the conclusion of the administrative process and, if Doe was convicted
of a charge, through any court action Doe should pursue.
In granting the injunction, the Court noted that the University's
investigation had extended far beyond the 120 business day period with
which, under its policies, all Title IX processes (including appeals)
should have concluded, and yet even after more than 200 days, had
done nothing to advance the investigation beyond interviewing the
Petitioner. The Court found that extended period of inaction-during
which Petitioner was subject to the Interim Suspension-was
unreasonable and arbitrary.
The trial court further noted that under the relevant portion of Regents'
Policies of Student Conduct, § 105.08, a student shall be restricted only
to the minimum extent necessary where 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. However, the University issued an
interim suspension that was unlimited in both duration and scope,
without considering any less restrictive interim measures that might
have allowed Petitioner to continue his education while the
investigation proceeded, and without proceeding with its investigation
or making any attempt to contact Jane to verify her account, leaving
Petitioner without any ability-save the injunction- to compel the
Regents to complete the investigation and determine whether any
disciplinary charges would even be made against him.
On May 16, 2017, Regents appealed the trial court's ruling. After a UCSB
Dean reversed the disciplinary sanction in an appeal decision issued on
May 21, 2018, UCSB determined it would not pursue any sanction
against Petitioner. As a result of this determination, Regents on June
22, 2018, filed a request for voluntary dismissal of their appeal of the
injunction order. On June 27, 2018, the Court of Appeal entered an order
dismissing the appeal and filed a remittitur with this Court.
On June 29, 2018, Regents filed a motion to dismiss this case as moot.
This Court granted Regents' motion to dismiss, finding that the entire
proceeding was moot. The Court found that, upon its March 21, 2017
injunction order, UCSB ended the interim suspension and reinstated
Petitioner as an active student, and otherwise complied with the terms
of the injunction. With the ultimate reversal of any discipljnary sanction,
there was no final administrative action adverse to Petitioner, there
were no active proceedings involving him, and there was therefore no
relief remaining for the Court to give in mandamus. The Court found the
proceeding did not fall within the exception allowing it to hear a moot
action if it involves matters of public policy, finding that the issues
Petitioner raised involved factual issues specific to his situation (i.e.,
that Regents illegally obtained documents, that evidence was concealed
from him, and that the interim suspension order was not supported by
substantial evidence), which were not matters of continuing public
interest. The Court further found that the declarations Petitioner sought
in his cause of action for declaratory relief all related to past alleged
wrongs, and therefore were improper.
Following the dismissal of the proceeding, Petitioner filed a
Memorandum of Costs, seeking $5,239.12 in costs pursuant to Code of
Civil Procedure sections 1032 and 1033.5.
 Motion for fees:
Petitioner has now filed a motion seeking private attorney general fees,
with the addition of a multiplier of 0.6, pursuant to Code of Civil
Procedure section 1021.5. The motion seeks a lodestar amount of
$265,508.49. The reply seeks a lodestar fee of $290,513.14. With the
addition of the 0.6 multiplier (which, as sought by Petitioner, is actually
the application of a 1.6 multiplier to the lodestar amount), the total fees
sought are $464,821.55. The motion documents are massive, spannrng
thousands of pages, and include numerous declarations, 55 separately-
filed exhibits (both regular exhibits and exhibits that are the subject of a
request for judicial notice), and a 9 volume (2462 page) "administrative
record."
Respondent Regents opposes the motion, asserting that none of the
elements for an award of private attorney general fees have been met. In
the event the Court does not agree, Regents alternatively contend that
the fee request is excessive, and include time which is not appropriately
compensable, including time spent on the underlying criminal matter,
and vast amounts of time spent on administrative and secretarial tasks.
Motion to tax costs:
Respondent has filed a motion to strike or tax the costs claimed by
Petitioner. Respondent contends that (a) because the proceeding was
dismissed by the trial court, Petitioner is not a prevailing party entitled
to costs, under the terms of Code of Civil Procedure section 1032; and
(b) in the event the trial court finds that Petitioner was in fact a
prevailing party entitled to costs, certain of the claimed costs were
unauthorized or unnecessary.
Petitioner opposes the motion, his memorandum of points and
authorities addressing only the issue of the prevailing party. He submits
his attorney's declaration which, oniee again, addressed only the issue
of the prevailing party. Also submitted was the declaration of someone
who appears to be employed by Petitioner's attorney, who responded to
the challenges to individual costs by appending a chart in which she
reiterated each cost and what it was for, acknowledging that one $60
cost was a duplicate charge which should be deleted. Her declaration
contained general arguments for why the costs should be permitted.
ANALYSIS:
Motion for attorneys' fees pursuant to Code of Civil Procedure section
1021.5
For the reasons which will be explained below, the motion will be
denied.
The private attorney gene,ral doctrine, first articulated by the California
Supreme Court in Serrano v. Priest (1977) 20 Cal.3d 25, is now codified
in Code of Civil Procedure section 1021.5. Section 1021.5 permits a trial
court to award fees to a successful party in any action which has
resulted in the enforcement of an important right affecting the public
interest if (a) a significant benefit, whether pecuniary or nonpecuniary,
has been conferred on the general public or a large class of persons, (b)
the necessity and financial burden of private enforcement are such as
 to make the award appropriate, and (c) such fees should not in the
interest of justice be paid out of the recovery, if any.
The fundamental objective of the private attorney general doctrine is to
encourage suits effectuating a strong public policy by awarding
substantial attorney's fees to those who successfully bring such suits
and thereby bring about benefits to a broad class of citizens. (Serrano v.
Priest, supra, 20 Cal.3d at p. 43.) The 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. (Woodland Hills Residents Association, Inc. v.
City Council of Los Angeles (1979) 23 Cal.3d 917, 933. ["Woodland
Hills"]) Section 1021.5 was not designed as a method for rewarding
litigants motivated by their own interest who only coincidentally protect
the public interest. Rather, its purpose is to provide some incentive for
the plaintiff who acts as a true private attorney general, prosecuting a
lawsuit that enforces an important public right and confers a significant
benefit despite the fact that his or her own financial stake in the
outcome would not by itself constitute an adequate incentive to litigate.
(Flannery v. California Highway Patrol (1998) 61 Cal.App.4th 629, 635.
Regents contend that Petitioner has not met any of the elements
required for a private attorney general fee award.
1. Successful party.
In spite of the fact that this case did not proceed to judgment, and was
instead dismissed when it was deemed to be moot, Petitioner
achieved all of his objectives in pursuing this proceeding. In
obtaining the injunction order, he was able to establish that
the imposition of the unlimited interim suspension upon him
was unsupported by substantial evidence, and the Regents
were ordered to permit Petitioner to enroll in classes and
assure his assimilation both into classes and into campus life
for the duration of the University's investigation, including any
appeals. The Court is satisfied that Petitioner was the
successful party in this proceeding.
2. Enforcement of an important right affecting the public
interest.
In order to maintain a claim to private attorney general fees, the action
must also have resulted in the enforcement of an important right
affecting the public interest. Petitioner's motion essentially contends
that his action enforced his right to due process in the disciplinary
proceedings, and that this important right affected the public interest
because the public interest is benefitted when the ability of even a
single student to pursue higher education is unjustifiably interfered
with, citing Goldberg v. Regents of Univ. of California (1967) 248
Cal.App.2d 867, 876. In opposition, Regents argue that Petitioner has
not met the burden of establishing this element, because he sought
only to advance his personal interest in his education, and therefore did
not enforce an important right affecting the public's interest. Regents
have misconstrued this element, and have improperly included aspects
of other elements in making the argument. The Court has no problem
with the Goldberg court's recognition that Petitioner's personal due
process rights in the disciplinary process is an important public right,
and that the right to due process in the disciplinary process affects the
public interest (not the public's interest, as Regents state). This element
has therefore been met.
3. Conferring a significant benefit upon the general public or a
large class of persons.
Where the Court begins to have trouble with the private
attorney general analysis, is with the requirement that the
action have conferred a significant pecuniary or nonpecuniary
benefit on the general public or a large class of persons. The
relief which Petitioner sought and obtained in this 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. Even so,
Petitioner contends that this proceeding conferred a
significant benefit on a large number of people because it
allowed him to return to school, changed the outcome of the
disciplinary proceeding, "raised awareness" in the UCSB
community-, "raised awareness" in Santa Barbara, caused Ms.
Vasquez's conduct to follow her to a new job at Pitzer College,
that the Department of Education accepted the matter for
review, "exposed conduct" to the Regents, and "exposed
conduct" to the State Legislature. (See motion @ p. 14, lines
6-15.)
Because the public always has a significant interest in seeing that laws
are enforced, it always derives some benefit when illegal private or
public conduct is rectified. Nevertheless, the California Supreme Court
has emphasized that Legislature did not intend to authorize an award of
fees under Section 1021.5 in every lawsuit enforcing a constitutional or
statutory right. (Woodland Hills, supra, 23 Cal.3d at p. 939; Flannery v.
California Highway Patrol (1998) 61 Cal.App.4th 629, 635.) Rather, the
statute specifically provides for an award only when the lawsuit has
conferred a significant benefit on the general public or a large class of
persons. The trial court must determine the significance of the benefit
and the size of the class receiving that benefit by realistically assessing
the gains that have resulted in a particular case. (Woodland Hills, supra,
23 Cal.3d at pp. 939-940.)
In Pacific Legal Foundation v. California Coastal Commission (1982) 33
Cal.3d 158, plaintiffs successfully challenged a condition imposed on a
permit by the California Coastal Commission. The California Supreme
Court held they were not entitled to attorneys' fees pursuant to Section
1021.5, because their suit, while based on the constitutional right to be
free from the arbitrary deprivation of private property, vindicated only
the rights of the owners of a single parcel of property and did not confer
a significant benefit on a large class of persons. The Supreme Court
rejected the argument that the decision represented a "ringing
declaration" of the rights of other landowners in the coastal zone, or
would lead to the commission's abandoning of its prior unconstitutional
practices. (Id. at p. 167.) As a result, the possibility that a lawsuit
conveyed a cautionary message to the defendant about its conduct is
 insufficient to satisfy the significant public benefit requirement.
(Flannery v. California Highway Patrol, supra.) Rather, fees are
appropriate when the litigation establishes a significant public benefit
that is not simply incidental to the plaintiff's own personal stake in the
matter. (Id. at p. 637.)
As a result of these authorities, simply bringing "awareness" and
"exposing conduct" is necessarily insufficient to result in the conferring
of a significant benefit upon a large class of persons. Neither is the fact
that Petitioner's action, in the course of having achieved her personal
results including termination of the interim suspension and
reinstatement as an active student, might have conveyed a "cautionary
message" to Regents about their conduct sufficient to result in the
conferring of a significant benefit upon a large class of persons. Those
are simply the corollary benefits of any proceeding asserting improper
or illegal conduct. (See Woodland Hills, supra, 23 Cal.3d at p. 939.)
Petitioner's counsel communicated repeatedly with the Regents and the
Legislature, demanding the revocation of §105.08 of the Policies of
Student Conduct. As noted above, §105.08 provides that an interim
disciplinary order restrict the accused student only to the minimum
extent necessary where there is reasonable cause to believe that the
accused student's participation and/or presence will lead to physical
abuse, threats of violence, or conduct that threatens the health or safety
of any person on University property. On its face, the rule appears quite
reasonable, and Petitioner does not articulate anything to this Court
that is wrong with the rule as it is written. There is no evidence before
this Court to support the conclusion that Petitioner's action has
resulted in any revision to or revocation of the rule. Neither is there any
evidence before this Court that would even suggest, much less
establish, that there was widespread misapplication of §105.08 at UCSB,
such that any large class of persons could potentially have been
impacted. Petitioner has identified only a single other student who he
claims was the subject of restrictions greater than those minimally
required by the imposition of an interim disciplinary order. To the extent
respondent may have improperly applied the rule to Petitioner by
imposing greater restrictions upon him than might have been necessary
under the circumstances, his action achieved the removal of those
restrictions and his return to active student status pending the
resolution of the investigation-strictly personal benefits. There is
simply no evidence to support the conclusion that this proceeding in
any way conferred a significant benefit upon a large class of persons,
so as to meet the statutory requirement.
Petitioner also points to the fact that the Department of Education has
accepted review of his matter. However, that an agency which may or
may not ever act in any way has said that it will look into Petitioner's
matter does not provide evidence that gives rise to any conclusion that
Petitioner's proceeding-filed to achieve inherently personal relief-has
conferred a significant benefit upon a large class of persons.
Petitioner's motion relies on several cases which he specifically
contends support his claim that his petition conferred a significant
benefit on a large class of persons. Upon examination of the cases,
however, there are significant differences which distinguish them from
the circumstances present here, and they do not support Petitioner's
contention.
First, Petitioner relies upon Slayton v. Pomona Unified School District
(1984) 161 Cal.App.3d 538. In Slayton, the petitioners, who were 12
parents and their children, obtained a peremptory writ prohibiting the
Pomona Unified School district and four administrators of the
Philadelphia School from (a) suspending or threatening to suspend
students for any reason other than those enumerated in Education
Code section 48900, (b) suspending or threatening to suspend students
without first exhausting other means of correction, as required by
Education Code section 48900.2, (c) predicating admission to and
attendance at school upon any parental affirmation of belief in ideas,
i.e., a profession of loyalty to the philosophy of the school at issue; (d)
failing to have a conference with or written report to the parents of each
student for which it has become evident he or she is in danger of failing
a course, as required by Education Code section 49067; and (e)
administering corporal punishment to a student without the prior
written approval of the student's parent or guardian, in violation of
Education Code section 49001. After obtaining the writ, the petitioner's
sought attorneys' fees pursuant to Code of Civil Procedure section
1021.5.
The Slayton court reversed the trial court's denial of private attorney
general fees to the petitioners by finding, in relevant part, that in
obtaining an order which imposed an ongoing obligation on the school
and school district, petitioners had conferred a benefit not only on all
current students of the school and their parents, but also on all future
students of both the school and the school district, and their parents.
Petitioners' proceeding had therefore conferred a significant benefit
upon a large class of persons, thereby meeting the requirement
imposed by Section 1021.5.
Petitioner also relies on Phipps v. Saddleback Valley Unified School
District (1988) 204 Cal.App.3d 1110. In Phipps, the legal guardian of a
hemophiliac student who had been exposed to the AIDS virus filed a
lawsuit and sought an injunction, after the school district advised that it
was in the process of formulating a policy on AIDS and infectious
diseases, and refused to enroll the child in school and required that he
be home schooled pending formulation of the policy. The trial court
issued an injunction requiring the school district to admit the child to
attendance in a regular school within its district, subject to his medical
condition being reevaluated at least every six months. After the order
was issued, the school district's new policy became effective. The case
proceeded to trial, at which time the trial court granted a permanent
rnjunction against the district, requiring that the child be allowed to
remain in school in regular attendance, subject to appropriate medical
exam at least every six months, and that his guardian advise the district
of any known changes in the boy's physical condition. The trial court
awarded the guardian $10,000 in attorneys' fees pursuant to Code of
Civil Procedure section 1021.5. In its statement of decision, the trial
court found, among other things, that the school district had
unreasonably delayed formulating its policy.
The Phipps court affirmed the award of fees pursuant to Section 1021.5,
finding that the issuance of the preliminary injunction served as
 a stimulus for the district to finalize its policy on AIDS and
infectious diseases. While the issuance of the permanent
injunction alone did not pave the way for every affected
student to attend classes, the lawsuit was instrumental in
prodding the district to address the issue, to effectuate an
appropriate policy, and to implement that policy without
impairing the rights of its students. As a result, the lawsuit
conferred a benefit upon a sufficiently large class of persons
to meet that statutory requirement of Section 1021.5.
Petitioner's counsel also refers in his supporting declaration
to a case against the Regents in which he represented a
student who had been expelled by UC San Diego, and was
awarded "100°/o of my fees" under Section 1021.5. While he
noted in his declaration that the Fourth District Court of
Appeal had affirmed the fee order, he did not provide the Court
with that court's decision. However, Respondent sought
judicial notice of the decision, and provided the Court with a
copy of it. While the decision was not a published decision, it
is an official court record, for which judicial notice is
appropriate, and the Court will take Judicial notice of the
opinion. (Evid. Code, § 452, subd. (d).)
The case is entitled Dorfman v. The Regents of the University of
California (2018 WL 507864). In an earlier appeal, the Court of Appeal
had reversed the trial court's denial of Mr. Dorfman's petition for writ of
mandate, on the grounds that the Regents had violated his 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,
because the university had refused to provide him with the identity of
the other student. Without knowing the identity of the other student, the
petitioner was potentially unable to defend himself by demonstrating
that their relative positions in the classroom would have rendered it
impossible for him to have cheated off of the other student. In this
subsequent appeal, the court modified the judgment which the trial
court had entered on remand of the prior appeal. Also, both sides had
appealed from the trial court's award of private attorney general fees to
Mr. Dorfman, with the Regents contending such fees were unauthorized,
and with Dorfman contending they were insufficient.
With respect to private attorney general fees, the court found the award
of such fees was not an abuse of discretion. In response to the Regents'
argument that there was no basis for the trial court to conclude that the
litigation had conferred a significant benefit on the public or a large
class of persons, the Court of Appeal noted that, prior to the Dorfman
petition, UCSD had a uniform policy to interpret its rules to provide the
identity of witnesses in academic misconduct proceedings only if they
were a party to the misconduct, or were supportive of the university's
claims. After the Dorfman proceeding, a UCSD official responsible for
training student advocates for academic disciplinary proceedings
provided declaration testimony that, in training student advocates, he
intended to make them aware of the court's opinion, which will help
secure fair administrative proceedings in academic misconduct cases
in the future. The petition had resulted in UCSD properly defining a
"relevant witness" under its own procedural rules, and that change was
 being implemented in a manner that would benefit all students facing
academic misconduct proceedings, estimated to be more than 600
students each year. As a result, the Court of Appeal found there was
sufficient public benefit to support the trial court's award of fees
pursuant to Section 1021.5.
In recap, each case involved much more than simply enforcing the law
and obtaining a private benefit from the action. In each case, there was
evidence before the trial court to support an identifiable significant
benefit which the proceeding conferred on a large class of persons,
rather than a general claim that the plaintiffs or petitioners had merely
"exposed" or brought "awareness" to improper conduct. The Slayton
action conferred a significant benefit upon a large class of persons
because it resulted in a permanent, ongoing order which would benefit
all present and future students of b1:>th the school and the school
district, and their parents. The Phipps action conferred a significant
benefit upon a large class of persons because it acted as a stimulus for
a school district which unreasonably delayed in formulating its policy,
to finally finalize, effectuate, and implement an appropriate policy on
AIDS and infectious diseases, without impairing the rights of its
students. The Dorlman action resulted in UCSD properly defining a
"relevant witness" under its own rules, about which all future student
advocates for academic disciplinary proceedings would be trained,
resulting in a change which would benefit the estimated 600 students
each year who faced academic misconduct proceedings.
After a realistic assessment of the gains which have resulted from
Petitioner's action, there is no evidence before this Court to support the
existence of any articulable significant benefit to the 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-specifically
found by the California Supreme Court to be insufficient to support an
award of private attorney general fees under Code of Civil Procedure
section 1021.5. (Woodland Hills, supra, 23 Cal.3d at p. 939.) The gains
which were achieved by Petitioner's action were entirely personal, and
any other benefits achieved were incidental to plaintiffs personal stake.
Because Petitioner has failed to establish all of the elements required
for an award of private attorney general fees pursuant to Section
1021.5, the motion must be denied.
4. The necessity and financial burden of private
enforcement are such as to make the award appropriate.
Having already found that Petitioner is not entitled to private attorney
general fees because his action did not confer a significant benefit upon
the public or a large class of persons, the Court could deny the motion
without referring to the final statutory requirement for an award of
private attorney general fees, i.e., that the necessity and financial
burden of private enforcement are such as to make the award
appropriate. Even so, it is questionable whether Petitioner has met this
requirement.
Under the private burden prong of Section 1021.5, fees are recoverable
when the cost of the claimant's legal victory transcends his personal
interest, i.e., 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, supra, 23 Cal.3d at p. 941.) If the enforcement
of the public interest is merely coincidental to the attainment of
personal goals or is self-serving, the requirement is not met. (California
Common Cause v. Duffy(1987) 200 Cal.App.3d 730, 750-751.) A party
can be denied fees where the primary purpose in bringing suit was to
pursue and protect its own rights, rather than to further a significant
public interest. (Bowman v. City of Berkeley (2005) 131 Cal.App.4th 173,
181.)
Petitioner's primary purpose in filing this action-as reflected by the
allegations of his petition-was to pursue and protect his own rights
and interests 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. That his counsel
expended an extraordinary amount of time and incurred an
extraordinary amount of fees in achieving these goals does not, without
more, mean that the lawsuit placed a burden on him out of proportion tq
his individual stake, or that the cost of his legal victory in any way
transcended his own personal interest. That his counsel also made
extensive efforts to find a way that this highly personal action could
impact the public interest, potentially in an effort to provide a basis for a
private attorney general fee claim, does not alter the fact that any
enforcement of the public interest was merely coincidental to the
attainment of his personal goals.
Motion to strike or tax costs
The motion is granted in part and denied in part. The Court will tax the
total amount of $524.21 from the claimed costs totaling
$5,239.12, for total permissible costs of $4, 714.91.
1. Prevailing party.
Pursuant to Code of Civil Procedure section 1032(b), except as
otherwise expressly provided by statute, a prevailing party is entitled as
a matter of right to recover costs in any action or proceeding. Section
1032(a)(4) defines a "prevailing party" as including the party with a net
monetary recovery, a defendant in whose favor a dismissal is entered, a
defendant where neither plaintiff nor defendant obtains any relief, and a
defendant as against those plaintiffs who do not recover any relief
against that defendant. It provides further that if any party recovers
other than monetary relief and in situations other than as specified, the
"prevailing party" shall be as determined by the court, and under those
circumstances, the court, in its discretion, may allow costs or not.
Respondent Regents argues that it is the prevailing party in this action,
given that a dismissal was entered in its favor. Consequently,
Respondent argues that Petitioner is not entitled to costs in this
proceeding. Petitioner contends that he recovered everything he
requested in his petition, and as suc:h is a "prevailing party" within the
meaning of Section 1032(a)(4), because he recovered "other than
monetary relief."
The Court agrees that Petitioner is the "prevailing" party in this
proceeding, in that he obtained all of the relief that he was seeking in
his petition. Because that relief was non-monetary, his entitlement to
costs is a matter within the Court's discretion, and he is not entitled to
 costs as matter of right. Nonetheless, the Court will exercise its
discretion to award Petitioner appropriate costs, to the extent they have
been properly established.
2. Recoverable costs.
To obtain costs, a prevailing party must serve and file a memorandum
of costs within the earlier of 15 days after the date of service of notice of
entry of judgment or dismissal, or 180 days after_entr¥ o_f j_udgment.
(Cal. Rules of Court, rule 3.1700, subd. (a).) The time llm1t 1s mandatory.
(Hydratec, Inc. v. Sun Valley 260 Orchard & Vineyard Co. (1990) 223
Cal.App.3d 924, 929.) The memorandum must be verified by the
statement of the party, attorney, or agent that to the best of his or her
knowledge, the items are correct and were necessarily incurred in the
case. There is no requirement that supporting documentation be
submitted with the memorandum; such documentation must be
submitted only if costs are put in issue by a motion to tax costs. (Jones
v. Dumrichob (1998) 63 Cal.App.4th 1258, 1267 .)
A party may challenge the memorandum by filing a motion to strike (the
entire cost bill) or tax (challenging individual costs), within 15 days after
service of the memorandum of costis, extended by 5 days if the
memorandum of costs is served by mail. (Rule 3.1700, subd. (b)(1);
Code Civ. Proc.,§ 1013(a).) If the items on their face appear to be proper
charges, the verified memorandum 1o f costs is prima facie evidence of
their propriety, and the burden is on the party seeking to tax costs to
show they were not reasonable or necessary. (Bender v. County of Los
Angeles (2013) 217 Cal.App.4th 968, 989.) When items of cost are
properly objected to and put in issue, the burden of proof is on the party
claiming them as costs. (Ladas v. California State Automobile
Association (1993) 19 Cal.App.4th 761, 774-776.) Whether a listed cost
was reasonably necessary is a question of fact for the trial court.
(Bender v. County of Los Angeles, supra.)
The Court first notes that the grant of the dismissal motion is reflected
in the Court file only through the minute order from the August 7, 2018,
hearing on the motion. It does not appear that any dismissal order or
notice of dismissal was ever served by any party. Consequently, the
time for the filing of the memorandum of costs is 180 days after the
dismissal, or 15 days after any future service of an order of dismissal or
notice of dismissal. The memorandum of costs which was filed on
August 15, 2018, is therefore necessarily timely. The memorandum of
costs was served by mail. Consequently, the motion to strike or tax
costs, filed on September 4, 2018, is also timely.
Respondent challenges a number of the specific costs claimed by
Petitioner.
a. Filing and motion fees
Respondent seeks to tax $120 from Category 1 [filing and motion fees],
specifically the two $60 cost bill entries for ex parte application filing
fees on 1118116 and 12/8/16. Respondent contends that the first charge
was not necessary, because the ex parte application was to set a
hearing on petitioner's motion for stay during the first week of January,
2017. It asserts there was no exigent need for the application on
11/18/16, since the matter could have been set through the normal
 motion procedure. In his opposition to the motion, Petitioner never
addresses the issue of the necessity of the filing fee for the ex parte
application.
Pursuant to Code of Civil Procedure section 1033.5(c)(2) allowable costs
shall be reasonably necessary to the conduct of the litigation,
rather than merely convenient or beneficial to its preparation.
The ex parte application heard on November 9, 2016, was, in
fact, for the purposes of scheduling the hearing on Petitioner's
motion for preliminary injunction, and from the inception
sought to set the hearing on the motion in January 2017.
Petitioner makes no effort to explain why an ex parte
application was necessary to schedule a hearing which could
have been scheduled directly for a January hearing date
without ex pa rte relief. The Court finds that the cost was not
reasonably necessary to the conduct of the litigation, and will
tax the $60 fee.
Respondent challenges the second $60 ex parte fee,
contending that it is unclear what it relates to, since the
court's docket does not show any ex parte application was
filed on that date. In response, Petitioner acknowledges that
the second $60 charge is a duplicate charge, which should be
withdrawn.
The Court therefore taxes a total of $120 from the cost bill's "filing and
motion fees" section.
b. Service of process/messenger fees.
Respondent seeks to tax $606.46 in service of process/messenger fees,
out of the $1, 109.80. The Court will grant the motion in part, and tax the
amount of $232.21 from this section of the Memorandum of Costs.
(1) Respondent seeks to tax a $43.75 cost, incurred on 11/9/16, for
service of discovery upon "UCSB." Respondent contends that UCSB is
not a proper party to the action, that Regents makes clear on its website
how service should be made and had appeared in the proceeding, and
there is no reason why the discovery had to be served by a process
server rather than via mail to Regents' counsel. Petitioner responds
with respect to the use of a process server to serve discovery (see (2)
below), but not with respect to its service upon UCSB, which is not a
proper party to the proceeding. The Court will tax the cost.
(2) Respondent further seeks to tax a $124.75 cost to serve discovery on
Regents by a process server on 11/9/16, and a $124.75 cost to serve a
Notice of Taking Deposition upon Regents by a process server on
11 /13/16, contending there was no justification for process server
service rather than service by mail or Federal Express. In opposition,
Petitioner contends that personal service was used because he had a
limited window of time to get the discovery in order to file the motion
that would ultimately be heard on January 3, 2017. The motion needed
to be filed before Attorney Ottilie left the country for two weeks in
December, and the hearing had to be held before the second quarter
started, in order for it to have meaning. Everything had to be expedited
because University failed to complete their administrative process in
Fall 2016. Later service of discovery would have resulted in the
responses not being available timely for the motion.
While it is something of a close call, the Court will permit the costs, and
will deny the motion to tax them. Time was always of the essence to
Petitioner in this proceeding, given that his ability to attend classes or
in any way further his education was being impacted by the nature and
scope of the interim suspension imposed against him. It was not
unreasonable for him to attempt to eliminate any delays-even short
ones-in obtaining relief from the courts.
(3) Respondent seeks to tax a $63.71 charge incurred on 12/1/16, for
overnight service of process upon its counsel, for an unidentified
document. In opposition, Petitioner identifies this charge as "The CCP §
1094 Mandamus As To September 22, 2016 Administrative Decision;
and Injunction/Mandamus/Declaratory Relief Re: Returning John Doe To
School For Commencement of January 9, 2017 Second Quarter." In
response, Regents contend that Petitioner has failed to address why it
was necessary to serve the injunction motion via overnight service,
rather than regular mail service. The Court agrees. The service of the
motion for injunction was well within the time it could have been served
by regular mail service on December 1, 2016, for a hearing scheduled
for January 3, 2017, even accounting for the intervening Christmas
(12/26/16) and New Years' (1/2/17) court holidays. The Court will
therefore tax the overnight service cost, finding that it was not
reasonably necessary to the conduct of the litigation.
(4) Respondent seeks to tax a $124.75 cost incurred on 2/3/17
for service by process server of Petitioner's petition for writ in
the Court of Appeal, on the ground that the cost was
unreasonable and unnecessary because the Court of Appeal
requires all writ petitions to be e-filed, and permits the
petitions to bee-served (CRC 8.70-8.79.) Petitioner does not
specifically address the cost in his opposition to the motion.
However, because e-filing and e-service are relative
newcomers to the courts, and not all attorneys are well-
versed upon their application and requirements even today,
much less in early 2017, the Court will permit the cost and
deny the motion to tax it. Writ petitions are, by their nature,
extremely time sensitive, and it was not patently
unreasonable for Petitioner to choose to personally serve the
petition upon Respondent.
(5) Finally, respondent seeks to tax one of the two $124.75 costs
incurred on 2/3/17 for service by process server of the petition
for writ, since there was no reason to separately serve both
the Santa Barbara Superior Court and Judge Anderle.
Petitioner does not address the issue in his opposition to the
motion. The Court will grant the motion and tax the
unnecessarily duplicative cost.
c. Models, enlargements, and photocopies of
exhibits.
The Memorandum of Costs seeks $3,015.87 in Category No. 12,
"Models, enlargements, and photocopies of exhibits." The attachment
to the memorandum identifies the charges incurred to be a $393.77
 charge incurred on 12/8/16 for copying the administrative record; a
$184.14 charge incurred on 1/12/17 for copying the administrative
record; a $91.50 charge incurred on 1/16/17 for unspecified copying; a
$156.2·5 charge incurred on 1/19/17 for unspecified copying; a $1,984.41
charge incurred on 1/30/17 for copying of three volumes of
administrative record, and three volumes of exhibits for the writ
petition; and a $205.80 charge incurred no 2/7/17 for copying of the
Petition for Writ of Mandate.
Respondent seeks to tax the entire $3,015.87, on the basis that the
Petitioner is not entitled to recover the cost of creating his own
administrative record which, by statute, is to be prepared by
Respondent. (Code Civ. Proc.,§ 1094.6, subd. (c).) Petitioner never
made a request for the administrative record, nor did Respondent fail to
produce it. To the extent that any of the costs are permitted,
Respondent seeks to tax $1,487.13 of the $3,015.87 claimed. This
includes the unidentified copying charges ($91.50 and $156.25), since
Petitioner has not met his burden of specifying how the charges were
reasonably necessary to the litigation. Finally, to the extent that the
$1,984.41 cost appears to be for three copies related to the Petition for
Writ filed in the Court of Appeal, 1/3 of the cost ($661.47) should be
taxed, because the exhibits underlying the writ petition need not be
served upon the Superior Court; only the petition itself must be served.
In opposition to the motion, Petitioner explains that its preparation of an
"administrative record" was simply the preparation of the exhibits
necessary to accompany John's filings in the Superior Court and Court
of Appeal. There is no claim that the documents were not reasonably
helpful to aid the trier of fact, and both the Court of Appeal and the
Superior Court based their decisions largely on the information gleaned
from these documents. No one objected to the use of the documents,
and they were considered by both courts. Petitioner further identified
the previously unspecified copying charges as being for continued
assembly and copying of exhibits for the "administrative record."
The Court will permit the costs of copying the "administrative record,"
which served as the exhibits which accompanied both the
Petition for Writ filed with the Court of Appeal, and the
ultimate hearing on the injunction motion in the Superior
Court. The documents were helpful to this Court, and this
Court can infer from the nature of the Court of Appeal's order
that they were helpful to that court as well. The motion is
therefore denied as to the category of models, enlargements,
and photocopies of exhibits.
d. Fees for electronic filing or service.
Respondent seeks to tax $197 of the $454.95 sought by Petitioner in
Category 14, fees for electronic filing or service. The motion is granted
in part and denied in part as to this category, and the Court will tax the
amount of $172.
(1) Respondent seeks to tax the $25 e-filing fee for the 11/10/16
scheduling ex parte application (the same application with respect to
which Respondent challenged the filing fee, on the basis that the
application was unnecessary and the January setting of the hearing
could have been accomplished through filing a noticed motion). For the
 same reasons that the Court did not allow the filing fee for that ex parte
application, it will tax the $25 e-filing cost.
(2) Respondent seeks to tax the $25 e-filing fee for the 12/9/16 filing of
the stipulation and order for filing fi1rst amended complaint, on the
ground that the cost was not reasonably necessary to the conduct of
the litigation, because Petitioner could have amended his petition
wit.h out leave of court when Regents met and conferred with him prior
to filing its demurrer. He did not do so, and waited until after the
demurrer was filed to amend his compliant addressing the same
deficiencies met and conferred on. The Court will permit the cost, and
will deny the motion to tax it.
(3) Respondent seeks to tax the $47 e-filing fee incurred on 12/13/17 for
the filing of a second stipulation and order for filing first amended
complaint, on the ground that Petitioner cannot recover two costs for
e-filing the identical stipulation. In opposition, Petitioner merely notes
that the filing of the first stipulation was rejected by the court. However,
unless that rejection was directly attributable to some action by or fault
of Regents, there is no basis for seeking reimbursement of a second
e-filing fee. There is no such information currently before the Court, and
the Court will tax this $47 fee.
(4) Respondent seeks to tax the $25 e-filing fee incurred on 12/14/16 for
filing the First Amended Petition and Complaint, since another
cost for doing so was claimed on 12/2/16, and Petitioner
cannot recover twice fore-filing the same document. In his
opposition, the 12/2/16 charge has disappeared without
explanation, but the 12/14/16 cost remains. That the cost has
disappeared from the opposition chart of costs incurred does
not mean that it has been removed from the Memorandum of
Costs itself. Petitioner cannot charge twice for the same cost,
and the Court will tax this $25 fee.
(5) Respondent seeks to tax three separate $25 e-filing fees,
incurred on 12/15/16, 12/20/16, and 2/10/17, incurred to file a
separate proof of service for other documents. Respondent
contends that Petitioner was not required to file the proof of
service separately from the document to which it
corresponded, thereby incurring a separate e-filing fee, and
could have avoided the additional fees by simply appending
the proofs of service to the documents themselves. As a
result, Respondent contends the charges were neither
reasonable nor necessary. In opposition, Petitioner states only
"You cannot file a proof of service if you have not served it."
That response begs the question of why service had not
previously been accomplished and why a separate proof of
service (and accompanying separate e-filing charge) was
therefore necessary for those documents, in that service can
be-and normally is-accomplished prior to the submission of
a document for e-filing, rendering completely true and
accurate any proof of service appended to the document that
is e-filed. The Court will tax these three $25 costs.
e. Additional costs sought by opposition.
In his opposition, Petitioner for the first time seeks $97.85 in costs
related to the filing of the motion for private attorney general fees.
Respondent challenges those fees, based upon the fact that they were
not included in the original Memorandum of Costs, even though an
amended Memorandum of Costs including them would have been
timely. Respondent contends that the costs are now barred because
they are untimely claimed.
The costs are not included in any Memorandum of Costs, and are
therefore not properly sought at this time, particularly through an
opposition to a motion to tax costs,. The Court does not, however, see
any evidence in the court file that either the dismissal order or a notice
of entry of dismissal were ever served. If that is the case, it is still
possible to file a timely amended Memorandum of Costs including the
costs sought for the first time in the opposition papers.

© 201 B Superior Court of the County of Santa Barbara

 1 PROOF OF SERVICE
2 STATE OF CALIFORNIA, COUNTY OF SANTA BARBARA
3 At the time of service, I was over 18 years of age and not a party to this action. I
am employed in the County of Santa Barbara, State of California. My business address is
4 33 West Mission Street, Suite 201, Santa Barbara, California 93101.
5 On October 23, 2018, I served D the originals [8] true copies of the following
document(s) described as following document(s):
6
7 NOTICE OF ENTRY OF ORDER RE: PETITIONER'S MOTION FOR
ATTORNEY FEES AND RESPONDENT'S MOTION TO
8 STRIKE OR TAX COSTS

9 on the interested parties in this action as follows:

10 Robert P. Ottilie Attorney for Petitioner, John Doe

444 West "C" Street, Suite 320
r::i::: 11
San Diego, CA 92101
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ro@ottilielaw.com
.....:!
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13 [8] BY MAIL: I enclosed the document(s) in a sealed envelope or package addressed
~ ~5:::g; to the persons at the addresses listed above and placed the envelope for collection
1ii and mailing, following our ordinary business practices. I am readily familiar with
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14
my company's practice for collecting and processing correspondence for mailing.
25 ~ ~
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Cl)U 15 On the same day that the correspondence is placed for collection and mailing, it is
>--< 0 ~ deposited in the ordinary course of business with the United States Postal Service,
f--< Vi -<
VJ ~ gi
~~ -< 16 in a sealed envelope with postage fully prepaid.
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0 ~ I- 17 [8] BY E-MAIL: I caused the above listed documents to be sent to the above listed
~M~
WM Cl) e-mail address from the address lindsey@nps-law.com. I did not receive an error
0... message after sending the documents.
w~
18
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20 I declare under penalty of perjury under the laws of the State of California that the
above is true and correct.
21
Executed on October 23, 2018, at Santa Barbara, California.
22
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