No PAGA Fees for Proving University Acted with No Substantial Evidence

Timothy Kowal, Esq.
December 16, 2020

In Doe v. Regents of the University of California (1st Dist., Div. 4 Nov. 30, 2020) No. A158704 (unpublished), a third-year med student at UCSD examined a 12-year-old girl brought in by her mother for a potential eating disorder, but conducted the examination of the girl's breasts and genitals without a chaperone, in violation of University policy. After a complaint, the University's Office for the Prevention of Discrimination and Harassment (a dystopian-sounding affair) investigated the student, and though there was no evidence of any sexual misconduct, the investigator found the examination could have been "perceived as sexual in nature" by a minor in the patient's position. On that basis, the student was terminated from the University.

After unsuccessfully appealing with the University, student sought a writ of administrative mandate in the Superior Court, and obtained a finding "there's no substantial evidence ... in the entire record that this was of a sexual nature."

But despite prevailing, student was denied PAGA fees under CCP § 1021.5. The First District held PAGA fees are not available when succeeding on a substantial evidence question, because that is not enough of "a ringing declaration of the rights of all or most" members of the public or group represented by the plaintiff. Such fees typically are reserved for vindicating due process rights, which plaintiff did not do here. His victory was more personal in nature.

And Government Code § 800 fees, for overturning a University's "arbitrary and capricious" action in a Title IX action, were not available either. Even though the adverse action was not based on any legally cognizable evidence, the trial court, in its discretion, may still find the action was not arbitrary.

That is, even if a University acts upon no evidence, unless it does so in a way that strikes the courts as "stubborn" or in "bad faith," it will not be found to be arbitrary or capricious. (That strikes me as rather a deviation from, or at least an amendment to, the literal meaning of "arbitrary or capricious." But, that is only my opinion.)

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at, and publishes a newsletter of appellate tips for trial attorneys at Contact Tim at or (714) 641-1232.

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