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Tentative Ruling
Judge Pauline Maxwell
Department 6 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION

Daniel J Ortiz vs The Regents of the University of California

Case No: 17CV02729
Hearing Date: Wed Dec 13, 2017 9:30

Nature of Proceedings: Motion: Attorney Fees

TENTATIVE RULING: The motion is denied.

 

Background: Petitioner Ortiz filed this mandate proceeding, challenging the imposition of sanctions against him by Respondent Regents for academic dishonesty in violation of the Student Conduct Code, in the form of a one-quarter suspension and attendance at a Workshop on Ethics and Academic Integrity. In an Introductory Biology lab course in the Fall of 2016, Mr. Ortiz was accused of allowing another student to copy his answers for an online lab exercise. The exercise required each student to conduct queries of a database managed by the national Institute of Health, and answer questions based upon the results. The database assigned each student a separate, unique “RID” number for their searches. The professor noted that both Petitioner and another student had the same RID number for the exercise, consisting of a combination of eleven letters and numbers. Having never seen this before, she believed it indicated the two students did not conduct separate searches of the database as required by the lab, and cheated on the exercise.

Under the evidence before the Court, the chances of two students randomly being assigned the same RID number were very small. Further, the other student lived in the same house as Mr. Ortiz, along with eight other students. While Mr. Ortiz submitted his lab exercise on November 9, 2016 at 20:28, the other student did not submit his until November 13, 2016 at 22:58, 2 minutes before the deadline for completing it.

While the court found that the decision was supported by the findings made by the Student-Faculty Committee on Student Conduct, it found further that the findings were not supported by the evidence, since there was no evidence that Mr. Ortiz allowed the other student to copy his work, or even knew that he had. Mr. Ortiz would no longer have had access to his assignment on Monday, when the other student submitted his. The Court found it could reasonably have been inferred from the improbability of the same RID number being innocently assigned to two housemates, with the deadline for completing the assignment looming, that the other student had cheated. However, there was no evidence as to how he might have done so, or that it would have required Mr. Ortiz’s complicity. The evidence focused on why they could not have been assigned the same number, but there was no evidence as to whether or how the other student could have used Mr. Ortiz’s number. Mr. Ortiz testified he did not give the other student the number, and did not print his work.

Having found the findings unsupported by substantial evidence, the Court granted the petition and issued the writ, directing that Regents set aside their findings and recalculate his grade.

Motion: Petitioner moves for attorneys’ fees under Government Code section 800, which provides for an award of fees at the rate of $100/hour, not to exceed $7,500, if, in review of an administrative decision it is shown that the determination resulted from arbitrary or capricious action or conduct by a public entity or officer. Petitioner argues that a finding that the public entity engaged in conduct not supported by a fair or substantial reason, or an unsubstantiated determination, suffices for arbitrary and capricious action, within the meaning of Section 800, citing Evans v. Unemployment Ins. Appeals Bd. (1985) 39 Cal.3d 398, 421. He contends this standard was met when the trial court found that the Committee’s finding that Petitioner was responsible for cheating was not supported by the evidence, and there was no evidence that he allowed another student to copy his work or knew that the other student had done so. Petitioner asserts that he is responsible for his attorney’s fees, and his attorney has charged 70.80 hours at $405/hour. He therefore seeks the Section 800 fees of $100/hour for 70.80 hours, noting that the claim would rise should respondent oppose the motion.

Respondent opposed the motion, contending that Petitioner is not entitled to fees. Respondent argues that the court’s statement of decision makes clear that it proceeded in a manner required by law, and that there was no arbitrary conduct. Respondent asserts that the finding of arbitrary and capricious conduct must be made during the trial on the merits. (Plumbing etc. Employers Council v. Quillin (1976) 64 Cal.App.3d 215.) It argues further that fees are not awarded under Section 800 merely because the agency’s actions were erroneous—even if they were clearly erroneous. (Reis v. Biggs Unified School Dist. (2005) 126 Cal.App.4th 809.) A ruling that the findings and determinations are not supported by the record does not constitute evidence of arbitrary and capricious conduct. (Byrnes v. Riles (1984) 257 Cal.App.3d 1170, 1182.) To prove arbitrary and capricious conduct meriting a fee award under Section 800, petitioner must show government conduct not supported by a fair or substantial reason, stubborn insistence on following an unauthorized course of action, and a bad faith legal dispute. (Gilliland v. Medical Board of California (2001) 89 Cal.App.4th 208, 220.)

Respondent asserts that the Court’s statement of decision explained that Respondent’s decision was based on facts it believed were sufficient to make the finding, including that the RID numbers were identical, which the professor had never seen before, that Petitioner and the other student lived in the same house, and that the other student submitted his exercise just 2 minutes before the deadline for completing it. Those facts are not arbitrary and capricious, and Respondent contends the motion should be denied.

In reply, Petitioner clarifies that what the Byrnes court held was that a trial court’s ruling that certain findings and determinations were not supported by the record does not, in itself, constitute evidence of arbitrary and capricious conduct by the hearing officer. Petitioner asserts that such a finding also does not, in itself, preclude a fee award under Section 800.

Petitioner asserts that the basis for his fee award claim is that Respondent’s finding that he was responsible for cheating was not supported by the evidence, and not that Respondent had not proceeded in a manner required by law. As a result, Respondent’s argument that it had proceeded in a manner required by law is inapposite. Petitioner contends Respondent’s argument regarding its own belief that the facts were sufficient to make the finding is also inapposite, contending that the record must contain some legal evidence to support the board’s decision, citing Madonna v. County of San Luis Obispo (1974) 39 Cal.App.3d 57, 61. The statement of decision found those same facts relied on by Respondent to constitute “no evidence” that Mr. Ortiz had allowed the other student to copy his work, or that he knew that had happened. Therefore, the Court necessarily found the Madonna standard was not met, because it found no evidence to support the decision that Petitioner was responsible for cheating. Petitioner adds 4 hours to his fee request, related to the preparation of the reply, and seeks an additional 0.2 hours for appearing at the hearing.

ANALYSIS: Because the Court cannot conclude that the conduct by Respondent in finding Petitioner had committed academic dishonesty in violation of the Student Code of Conduct was arbitrary and capricious, the Court will deny the request for attorneys’ fees.

Petitioner seeks fees totaling $7,400 pursuant to Government Code section 800.

            Government Code section 800(a) provides:

In any civil action to appeal or review the award, finding, or other determination of any administrative proceeding under this code or under any other provision of state law, except actions resulting from actions of the Department of General Services, if it is shown that the award, finding, or other determination of the proceeding was the result of arbitrary or capricious action or conduct by a public entity or an officer thereof in his or her official capacity, the complainant if he or she prevails in the civil action may collect from the public entity reasonable attorney’s fees, computed at one hundred dollars ($100) per hour, but not to exceed seven thousand five hundred dollars ($7,500), if he or she is personally obligated to pay the fees in addition to any other relief granted or other costs awarded.

The key in this case is what conduct rises to the level of “arbitrary and capricious” action or conduct within the meaning of Section 800, which does not define that standard. An entity’s conduct is not arbitrary and capricious merely because it is erroneous, even if it was clearly erroneous. (Reis v. Biggs Unified School District (2005) 126 Cal.App.4th 809, 823.) Further, a ruling that findings and determinations were not supported by the record does not, in itself, constitute evidence of arbitrary and capricious conduct. (Byrnes v. Riles (1984) 157 Cal.App.3d 1170, 1182-1183.) Rather, the phrase “arbitrary and capricious” encompasses conduct not supported by a fair or substantial reason, a stubborn insistence on following unauthorized conduct, or a bad faith legal dispute. (Id.; Gilliland v. Medical Board of California (2001) 89 Cal.App.4th 208.

In Zuehlsdorf v. Simi Valley Unified School District (2007) 148 Cal.App.4th 249, a league decision not to permit a high school athlete to play sports was found to be “illogical and capricious,” when it was based upon a rule the terms of which the league could not define. In Reis v. Biggs Unified School District, supra, a school district’s actions in failing to reelect a teacher to his .57 full-time equivalent permanent position was found to be arbitrary and capricious, where the district failed to offer any defense or rationale for its actions and his entitlement to permanent status in his employment was undisputed. In Gilliland v. Medical Board of California (2001) 89 Cal.App.4th 208, the court found an award of fees under Section 800 inappropriate where the Board’s action was not wholly without merit or made in bad faith.

Based upon these authorities, the Court cannot find that Respondent’s conduct was arbitrary and capricious, within the meaning of Section 800. Certainly, the Court found that the finding that Petitioner had allowed the other student to copy his work was unsupported by the evidence. However, as noted above, a ruling that a finding was not supported by the evidence in the record does not, in itself, constitute evidence of arbitrary and capricious conduct. (Byrnes v. Riles, supra.) As a result, something more than this must be shown in order for Respondent’s conduct to be deemed arbitrary and capricious, and nothing further exists. Indeed, there is substantial evidence in the record from which Respondent could legitimately have inferred that cheating occurred. That evidence also permitted the inference that Petitioner was somehow involved in the cheating incident, given the identical RID numbers, and the fact that Petitioner lived in the same residence as the other involved student. The Court found that the Committee could reasonably have inferred that the other student had cheated, but could not find that there was evidence to support Petitioner’s complicity therein, given the ambiguities in the circumstances and the lack of information on how or why the other student could have actually effectuated the cheating. The Court cannot find that respondent’s conduct was wholly without merit or made in bad faith.

Because the Court cannot find that Respondent’s conduct was arbitrary and capricious, the motion for fees pursuant to Section 800 must be denied.

 
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