Case 2:07-cv-01488-FCD-EFB Document 1 Filed 07/24/07 Page 1 of 21

1 Debra Smith, State Bar No. 147863 (dsmith@equalrights.org)
2 Noreen Farrell, State Bar No. 191600 (nfarrell@equalrights.org)
3 EQUAL RIGHTS ADVOCATES 1663 Mission Street, Suite 250
4 San Francisco, CA 94103 Telephone: (415) 621-0672
5 Facsimile: (415) 621-6744

6 James C. Sturdevant, State Bar No. 94551

(jsturdevant@sturdevantlaw.com)

7 Mark T. Johnson, State Bar No. 76904

(mjohnson@sturdevantlaw.com)

8 Monique Olivier, State Bar No. 190385

(molivier@sturdevantlaw.com)

9 Whitney Huston, State Bar No. 234863

(whuston@sturdevantlaw.com)

10 THE STURDEVANT LAW FIRM A Professional Corporation

11 475 Sansome Street, Suite 1750 San Francisco, CA 94111

12

Telephone: (415) 477-2410 Facsimile: (415) 477-2420

13 Kristen Galles, State Bar No. 148740

14

(kgalles@abanet.org) EQUITY LEGAL

15

10 Rosecrest Avenue Alexandria, VA 22301

16 Telephone: (703) 683-4491

17 Attorneys for Plaintiffs

18

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

19

[Sacramento Division]

20

KELSEY BRUST; JESSICA BULALA; LAURA LUDWIG; and all those similarly situated,

21

Plaintiffs,

22

vs.

CASE NO. CLASS ACTION COMPLAINT WITH JURY DEMAND

23 REGENTS OF THE UNIVERSITY OF CALIFORNIA; LARRY VANDERHOEF; and
24 GREG WARZECKA,

25

Defendants.

26

27

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1

INTRODUCTION

2

1. Plaintiffs KELSEY BRUST, JESSICA BULALA, and LAURA LUDWIG (“Plaintiffs”)

3 bring this action on behalf of themselves and similarly situated women students at the University of

4 California, Davis (“UC Davis”) against the Regents of the University of California (“The Regents”) and

5 the Chancellor and other officials at UC Davis. Plaintiffs allege that Defendants have engaged in

6 systemic discrimination on the basis of gender at UC Davis by failing to provide equitable varsity

7 athletic opportunities for women and by eliminating existing female varsity athletic participation and

8 scholarship opportunities at UC Davis. Plaintiffs further allege that, by engaging in such conduct,

9 defendants are in violation of: (1) the Equal Athletic Participation Opportunity requirements of Title IX

10 of the Education Amendments of 1972 (20 U.S.C. § 1681 et seq.) (“Title IX”); (2) the Fourteenth

11 Amendment to the United States Constitution, as enforced through 42 U.S.C. section 1983; (3) the

12 Unruh Civil Rights Act of California state law (Cal. Civ. Code § 51 et seq.); and (4) California public

13 policy.

14

2. Under Title IX, defendants are prohibited from engaging in discrimination and from

15 denying participation in or the benefits of any educational program on the basis of gender. 20 U.S.C.

16 § 1681. Further, to comply with Title IX, the intercollegiate athletics program at UC Davis must be

17 structured so that: (1) the participation rate of women is “substantially proportionate” to their

18 undergraduate enrollment rate; or (2) the program demonstrates a “history and continuing practice of

19 program expansion which is demonstrably responsive to the developing interests and abilities” of

20 women; or (3) the present program “fully and effectively” accommodates women’s interests and

21 abilities. See 44 Fed. Reg. 71,413, 71,418 (1979). UC Davis’s intercollegiate athletic program fails to

22 meet any of these standards.

23

3. Defendants continue to violate the civil rights of Plaintiffs and members of the proposed

24 class they seek to represent in this action by failing to provide equitable athletic participation and

25 scholarship opportunities for women, despite the athletic interests and abilities of UC Davis female

26 students and potential students. In addition, Defendants have used and continue to employ a

27 discriminatory process for establishing and maintaining varsity teams for men and women at UC Davis,

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1 with the result that women are deprived of an equal opportunity to participate in varsity level sports.

2

4. Plaintiffs seek declaratory, injunctive, and monetary relief and the other judicial remedies

3 available to them to ensure Defendants’ compliance with Title IX, including: (1) a declaration that

4 Defendants have violated and continue to violate the above-referenced anti-discrimination laws; (2) an

5 injunction: (a) restraining Defendants from engaging in sex discrimination in the administration of the

6 UC Davis athletic programs; (b) requiring Defendants to increase varsity athletic participation

7 opportunities for female students at UC Davis and to provide all corresponding benefits of varsity status;

8 and (c) requiring Defendants to increase athletic financial assistance for female athletes; and (3)

9 monetary damages as permitted by law and proven at trial.

10

JURISDICTION AND VENUE

11

5. The first claim arises under the equal athletic participation opportunity requirements of

12 Title IX and its interpreting regulations, particularly 34 C.F.R. section 106.41(c)(1), and the equal

13 athletic financial assistance requirements of Title IX and its interpreting regulations, particularly 34

14 C.F.R. section 106.37. Jurisdiction is conferred on this Court by 28 U.S.C. sections 1331, 1343(a)(3),

15 and 1343(a)(4).

16

6. The second claim arises under the Equal Protection Clause of the Fourteenth Amendment

17 to the United States Constitution, as enforced through 42 U.S.C. section 1983. Jurisdiction is conferred

18 on this Court by 28 U.S.C. sections 1331, 1343(a)(3), and 1343(a)(4).

19

7. The third claim arises under the Unruh Civil Rights Act of California state law,

20 California Civil Code section 51 et seq. Supplemental jurisdiction is conferred on this Court by 28

21 U.S.C. section 1367.

22

8. The fourth claim arises under California state law. More particularly, Defendants’ sex

23 discrimination against female students at UC Davis violates the public policy against discrimination in

24 education established in, among other things, the California Constitution article I, sections 7 and 31;

25 California Education Code section 220 et seq; and California Education Code sections 66016, 66030,

26 and 66250 et seq. Supplemental jurisdiction is conferred on this Court by 28 U.S.C. section 1367.

27

9. Jurisdiction for declaratory and other relief is invoked pursuant to 28 U.S.C. sections

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1 2201 and 2202.

2

10. Venue in the United States District Court for the Eastern District of California is proper

3 pursuant to 28 U.S.C. section 1391(b) because a substantial part of the events giving rise to this action

4 occurred in Davis, California, which is within this judicial district.

5

THE PARTIES

6

11. All of the individual plaintiffs are women and current students at UC Davis. All are

7 highly skilled athletes who participate in club sports at UC Davis and who desire to participate in sports

8 at the varsity level. All of the plaintiffs are eligible to participate in intercollegiate athletics under the

9 applicable rules.

10

(a) Plaintiff Kelsey Brust enrolled at UC Davis in September 2006 and will be a

11 sophomore in the 2007-2008 school year. She is a field hockey player who has been involved in the

12 sport since childhood, and who played at a high level competitively in high school. She currently plays

13 on the UC Davis field hockey club team. She has an interest in varsity opportunities, is a skilled player,

14 and competes at a high level in the team’s conference. Ms. Brust is a resident of Davis, California,

15 which is within the jurisdiction of this Court.

16

(b) Plaintiff Jessica Bulula enrolled at UC Davis in 2005 and will be a junior in the

17 2007-2008 school year. She is a field hockey player who has been playing the sport since childhood and

18 played at a high level competitively throughout high school. Ms. Bulala has played on the UC Davis

19 field hockey club team for the past two years. She has interest in varsity opportunities, is a skilled

20 player, and competes at a high level in the team’s conference. Ms. Bulula is a resident of Davis,

21 California, which is within the jurisdiction of this Court.

22

(c) Plaintiff Laura Ludwig enrolled at UC Davis in 2004 and is currently a junior.

23 She is a wrestler and rugby player who wrestled in all four years of high school. Ms. Ludwig wanted to

24 wrestle at UC Davis, but was unable to do so because UC Davis eliminated women’s varsity wrestling.

25 She currently plays rugby on the UC Davis rugby club team and has an interest in participating in varsity

26 sports at UC Davis. Ms. Ludwig is a resident of Davis, California, which is within the jurisdiction of

27 this Court.

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1

12. UC Davis is one of the campuses of the University of California, which was created

2 pursuant to article IX, section 9 of the California Constitution. Under that same provision, it is

3 administered and governed by the public trust known as the Regents of the University of California.

4 Defendant Regents of the University of California is the legal party-in-interest for purposes of filing

5 claims against UC Davis and has the “power to sue and be sued” under that authority. Cal. Const. art. 9,

6 § 9(f). UC Davis is located in Davis, California, which is within the jurisdiction of this Court.

7

13. Since the passage of Title IX, The Regents and UC Davis have received and continue to

8 receive federal financial assistance and the benefits associated with such assistance.

9

14. Defendant Regents of the University of California is a public entity of and created by the

10 Constitution of the State of California and, as such, is a “state actor” for purposes of 42 U.S.C. section

11 1983.

12

15. Defendant Larry Vanderhoef, Ph.D., is the Chancellor of UC Davis. Dr. Vanderhoef has

13 overall authority and control over the day-to-day operations of UC Davis, including the athletic

14 department, the men’s and women’s athletic programs, its coaches, and its students. Dr. Vanderhoef is

15 also responsible for compliance with anti-discrimination laws at UC Davis under California state law

16 pursuant to California Education Code section 66292.2. Dr. Vanderhoef is a resident of the state of

17 California and is employed in Davis, California, which is within the jurisdiction of this Court.

18 Defendant Vanderhoef is being sued in his individual and official capacity.

19

16. Defendant Greg Warzecka is the athletic director at UC Davis. Mr. Warzecka has

20 authority and control over the athletic department at UC Davis, including the men’s and women’s

21 athletic programs, its coaches, and its athletes. Mr. Warzecka is a resident of the state of California and

22 is employed in Davis, California, which is within the jurisdiction of this Court. Defendant Warzecka is

23 being sued in his individual and official capacity.

24

17. On information and belief, each of the individual defendants has authority over the

25 athletic programs at UC Davis and has participated in or is otherwise responsible for the discriminatory

26 actions and decisions alleged herein, including the continued inequitable provision of athletic

27 participation opportunities and scholarships to female students.

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1

18. On information and belief, Defendant Regents of the University of California is

2 responsible for and has ratified the discriminatory actions and decisions of the individual defendants,

3 including the continued inequitable provision of athletic participation opportunities and scholarships to

4 female students at UC Davis.

5

CLASS ACTION ALLEGATIONS

6

19. Plaintiffs bring this action pursuant to Federal Rules of Civil Procedure, rules 23(a) and

7 23(b)(2), on behalf of themselves and a class of similarly situated individuals consisting of all present

8 and future women students at UC Davis who participate in, seek to participate in and/or are deterred

9 from participating in intercollegiate athletics at UC Davis.

10

20. All class members are aggrieved persons under federal civil rights law as a result of the

11 actions, policies, and practices of Defendants. Plaintiffs seek declaratory and injunctive relief on behalf

12 of themselves and all class members to prevent Defendants from engaging in future illegal conduct and

13 to rectify the effects of present and past discrimination.

14

21. This matter is properly maintainable as a class action pursuant to Federal Rules of Civil

15 Procedure, rule 23(b)(2) in that:

16

(a) The class members are so numerous as to make the joinder of all of them

17 impracticable. On information and belief, there are more than 12,000 female students at UC Davis, a

18 substantial number of whom would participate in intercollegiate athletics if additional participation

19 opportunities were made available to them and if the participants received the same benefits and

20 treatment provided to other varsity athletes. In addition, thousands of potential future female students at

21 UC Davis who currently participate in sports at high schools and community colleges in California or

22 other states, or who participate in organized sports associations in California and other states, would

23 participate in intercollegiate athletics at UC Davis if the opportunity to do so existed but will be denied

24 the opportunity to do so or will be deterred from doing so by the lack of such opportunity. Such future

25 students are putative class members whose joinder in this action is impractical.

26

(b) There are questions of law and fact common to the class members. Among the

27 questions of law and fact common to the class is: (1) whether the practices and conduct of Defendants,

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1 as described below, violate the class members’ right to enjoy the benefits of UC Davis’s athletic

2 program on an equal basis with male students; (2) whether Defendants deprive female students at UC

3 Davis of equal athletic participation opportunities; (3) whether Defendants deprive female students at

4 UC Davis of equal athletic financial assistance; and (4) whether Defendants violate Title IX, the Equal

5 Protection Clause of the U.S. Constitution, the Unruh Civil Rights Act of California state law, and/or

6 California public policy by refusing to provide equitable female athletic participation opportunities and

7 equitable financial athletic assistance. These common questions of law and fact predominate over

8 questions affecting individual class members.

9

(c) The claims of Plaintiffs are typical of the claims of the proposed class members.

10 Plaintiffs, like other class members, are women who have participated in and/or desire to participate in

11 an intercollegiate athletic program at UC Davis. The discrimination that they experienced and continue

12 to experience because of their sex, including inequitable athletic participation opportunities and

13 inequitable athletic scholarship opportunities, are typical of the sex discrimination which members of the

14 class have suffered, are suffering, or will suffer unless this Court grants the relief requested.

15

(d) Plaintiffs will fairly and adequately protect the interests of the class members and

16 have interests that are aligned with, and not antagonistic to, those of the class. They are represented by

17 counsel with extensive experience in Title IX, civil rights, civil liberties, and class action litigation.

18 They intend to vigorously prosecute this action to obtain the relief sought on behalf of the class. Each

19 Plaintiff is a member of the proposed class in that she has been and continues to be denied equal athletic

20 participation and scholarship opportunities at UC Davis.

21

(e) Defendants have acted or refused to act on grounds generally applicable to the

22 class – denying female students at UC Davis equal athletic participation and scholarship opportunities –

23 thereby making final declaratory and injunctive relief with respect to the class as a whole appropriate.

24

(f) Any compensatory damages sought by the class are incidental to the injunctive

25 relief and thus certification as a Rule 23(b)(2) class is appropriate.

26

GENERAL FACTUAL ALLEGATIONS

27

22. According to the most recent publicly available report that UC Davis has filed with the

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1 United States Department of Education pursuant to the Equity in Athletics Disclosure Act, 20 U.S.C.

2 section 1092, during the 2005-2006 academic year, women comprised approximately 56% percent of the

3 student population. However, women comprised only 50% percent of the participants on the

4 intercollegiate varsity teams offered by UC Davis. Upon information and belief, the disparity between

5 the rate of participation in intercollegiate athletics among women and women’s enrollment is

6 approximately the same today.

7

23. UC Davis has a practice of providing its male students with greater athletic opportunities

8 which has continued over time. As alleged above, UC Davis does not offer female students

9 opportunities to participate in intercollegiate athletics substantially proportionate to the percentage of

10 women enrolled as students. On information and belief, UC Davis has established and maintained its

11 men’s intercollegiate athletic teams based upon different criteria than women’s teams, relying to a

12 greater extent, in the case of men, on recruiting athletes from various sources to determine which teams

13 to establish and maintain.

14

24. UC Davis does not have a history or continuing practice of expanding intercollegiate

15 athletic opportunities for women students to accommodate their existing or developing interests. For

16 example, at various periods of time since the passage of Title IX, female participation opportunities for

17 women have actually decreased even though the number of female students has steadily risen over the

18 years. In addition, UC Davis has eliminated women’s varsity teams, including field hockey and

19 wrestling.

20

25. UC Davis has not fully and effectively satisfied the interest of women students in

21 intercollegiate varsity athletic opportunities. In particular, in recent years:

22

(a) In 2000-2001, UC Davis cut women from the varsity wrestling program on the

23 basis of their gender.

24

(b) Several women’s sports club teams, including field hockey and rugby, have

25 expressed interest in obtaining varsity status at UC Davis, through formal applications and otherwise.

26 UC Davis has failed to effectively respond to such interest, and has denied the varsity applications of

27 five registered sports club teams, i.e., badminton, bowling, field hockey, horse polo, and rugby. As a

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1 result, the members of these teams compete without the significant benefits that UC Davis provides to

2 varsity athletes, such as health insurance, paid travel to competitions, free coaching, access to personal

3 training, preferential class scheduling, financial scholarships, and university paid organization of all

4 practices and competition.

5

(c)

Many other women student athletes at UC Davis have an interest in varsity

6 opportunities and athletic financial assistance at UC Davis that has not been satisfied.

7

(d) Many current and future highly skilled high school and community college female

8 athletes have an interest in varsity opportunities and athletic financial assistance that UC Davis has not

9 addressed despite the fact that it addresses the interests of male students by establishing varsity teams

10 and recruiting athletes from high schools and community colleges to fill the roster of those teams.

11

FIRST CLAIM FOR RELIEF:

TITLE IX EQUAL ATHLETIC PARTICIPATION OPPORTUNITIES AND EQUAL

12

ATHLETIC FINANCIAL ASSISTANCE

(Against UC Davis only)

13

26. Plaintiffs reallege and incorporate by this reference each of the above allegations as if

14
fully rewritten herein.

15
27. Plaintiffs bring this claim on behalf of themselves and the above-defined class.

16
28. Title IX, enacted in 1972, provides in relevant part:

17

No person in the United States shall, on the basis of sex, be excluded from

18

participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal

19

financial assistance, . . .

20 20 U.S.C. § 1681(a). The Civil Rights Restoration Act of 1987 made Congress’ intent plain that

21 “program or activity,” as used in Title IX, applies to any program or activity so long as any part of the

22 educational institution receives federal financial assistance. 20 U.S.C. § 1687. Thus, UC Davis is

23 subject to Title IX even if none of the funding for its athletic programs comes from federal sources.

24

29. In 1975, the United States Department of Health, Education and Welfare (“HEW”) (the

25 predecessor of the United States Department of Education (“DOE”)) adopted regulations interpreting

26 Title IX. These regulations are codified at 34 C.F.R. Part 106 (The DOE regulations adopting the HEW

27 regulations are at 45 C.F.R. Part 86)(the “Regulations”).

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1

30. With regard to athletic programs, section 106.41(a) of 34 C.F.R. provides that

2 intercollegiate athletics are included within the “program or activity” requirements of Title IX:

3

No person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, be treated differently from another person or

4

otherwise be discriminated against in any interscholastic, intercollegiate, club or intramural athletics offered by a recipient, and no recipient shall

5

provide any such athletics separately on such basis.

31. 34 C.F.R. section 106.41(c) specifies the factors for determining the existence of equal
6

athletic opportunity, including whether the selection of sports and levels of competition effectively
7

accommodate the interest and abilities of both sexes. In 1979, the DOE’s Office for Civil Rights
8

(“OCR”) issued a policy interpretation of Title IX and the Regulations. This policy interpretation is
9

found at 44 Federal Register 71,413 et seq. (1979) (the “Policy Interpretation”).
10

32. The Policy Interpretation provides that, in order to comply with Title IX and 34 C.F.R.
11

section 106.41(c), schools must provide equal athletic opportunities in three general areas:
12

(1) scholarships; (2) participation opportunities; and (3) treatment and benefits.
13

33. According to the Regulations, to the extent that an educational institution provides
14

scholarship funding, “it must provide reasonable opportunities for such awards for members of each sex
15

in proportion to the number of students of each sex participating in . . . intercollegiate athletics.” 34
16

C.F.R. § 106.37(c); Policy Interpretation, 44 Fed. Reg. at 71,415.
17

34. OCR’s 1979 Policy Interpretation sets forth a three prong test for determining equal
18

athletic participation opportunities under Title IX. According to the Regulations and Policy
19

Interpretation, a school provides equal athletic participation opportunities only if it can satisfy one of the
20

following three prongs:
21

(1) [Prong One:] Whether intercollegiate level participation

22

opportunities for male and female students are provided in

numbers substantially proportionate to their respective

23

enrollments; or

24

(2) [Prong Two:] Where the members of one sex have been and are

under-represented among intercollegiate athletes, whether the

25

institution can show a history and continuing practice of program

expansion which is demonstrably responsive to the developing

26

interest and abilities of the members of that sex; or

27

(3) [Prong Three:] Where the members of one sex are under-

represented among intercollegiate athletes, and the institution

28

cannot show a continuing practice of program expansion such as

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that cited above, whether it can be demonstrated that the interests

1

and abilities of the members of that sex have been fully and

effectively accommodated by the present program.

2

Policy Interpretation, 44 Fed. Reg. at 71,418.
3

35. The Regulations require that sponsors of intercollegiate athletics (such as UC Davis) take
4

such remedial actions as are necessary to overcome the effects of sex discrimination in violation of Title
5

IX. 34 C.F.R. § 106.3(a). The Regulations further require that sponsors of intercollegiate athletics
6

programs comply with the Regulations within three years of their effective date (which was July 21,
7

1975).
8

36. By offering certain opportunities for male students to participate in intercollegiate
9

athletics, Defendants have demonstrated their determination that athletic participation opportunities
10

provide educational benefits that should be supported by UC Davis. Plaintiffs agree with this
11

determination that athletic participation opportunities provide valuable educational benefits. Thus,
12

Plaintiffs contend that they and all present and future female students at UC Davis should have equal
13

access and opportunity to receive these same benefits that male students at UC Davis already have,
14

including varsity athletic participation opportunities and financial athletic assistance.
15

37. Defendants determine the number of athletic participation opportunities available to male
16

and female students by choosing which sports to offer to each sex and by choosing how many athletes
17

they will allow to participate on each sport team.
18

38. Defendants intentionally discriminate against female students at UC Davis by, among
19

other things, choosing to make fewer athletic participation opportunities available to female students
20

than to male students and by choosing sports and participant numbers in such a way that fails to provide
21

female athletes with equal athletic participation opportunities.
22

39. Defendants fail to comply with the Title IX’s Three-Prong Test for determining equal
23

athletic participation opportunities under Title IX, as follows:
24

(a) UC Davis does not comply with the first prong of Title IX’s Three Prong Test
25

because the ratio of female to male athletes at UC Davis is not substantially proportionate to the overall
26

ratio of female to male students enrolled at UC Davis.
27

(b) UC Davis has not satisfied Prong Two because it cannot show a history and
28

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1 continuing practice of program expansion which is demonstrably responsive to the developing interest

2 and abilities of women, who have been the underrepresented sex in UC Davis athletics. Any remedial

3 actions that UC Davis has taken in the past twenty (25) years have been insufficient to satisfy its

4 obligations under Title IX. In fact, Defendants’ elimination of women’s varsity athletic opportunities in

5 field hockey in the early 1980’s and wrestling in 2000-2001, and Defendants’ refusal to establish

6 women’s varsity teams in other sports, despite the significant interest and ability of women student

7 athletes, increased the extent of sex discrimination in UC Davis athletic programs.

8

(c) UC Davis has not satisfied Prong Three of Title IX’s Three Part Test because UC

9 Davis does not fully or effectively accommodate the interests or abilities of female students to

10 participate in varsity athletics, including but not limited to interest and ability in field hockey, wrestling,

11 rugby, and other sports.

12

40. Defendants’ discriminatory actions violate the equal athletic participation requirements of

13 Title IX, as interpreted by 34 C.F.R. sections 106.31 and 106.41, the Policy Interpretation, and other

14 applicable law.

15

41. Defendants continue to violate Title IX by continuing to offer too few athletic

16 participation opportunities for female students despite significant interest and ability of women athletes.

17

42. Defendants have also intentionally discriminated against female students at UC Davis by,

18 among other things, choosing to make less athletic financial assistance available to female students than

19 to male students and choosing to make athletic scholarships available in such a way that fails to provide

20 female students with equal athletic scholarship opportunities. Defendants’ discriminatory actions violate

21 the equal athletic financial assistance (scholarship) requirements of Title IX, as interpreted by 34 C.F.R.

22 section 106.37, the Policy Interpretation, and other applicable law.

23

43. As a result of Defendants’ discriminatory actions, Plaintiffs have been denied their civil

24 right to enjoy an equal opportunity to participate in varsity athletics.

25

44. Defendants’ discriminatory allocation of athletic financial assistance will increase if

26 Defendants are not ordered to add more athletic scholarship opportunities for female athletes as more

27 female athletic participation opportunities are added.

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1

45. Plaintiffs therefore seek injunctive relief that requires Defendants to increase varsity

2 athletic participation opportunities to reflect interest in field hockey, wrestling, rugby, and/or other

3 sports and corresponding athletic financial assistance for female students.

4

46. Plaintiffs have further incurred damages, including, among other things, the damages

5 associated with lost educational opportunities, emotional distress, lost self-esteem and confidence,

6 humiliation, and other compensatory damages that result from being denied equal opportunity on the

7 basis of sex.

8

47. Plaintiffs therefore seek damages on behalf of themselves and the plaintiff class.

9

SECOND CLAIM FOR RELIEF:

EQUAL PROTECTION

10

(Against UC Davis for injunctive relief only

Against Individual Defendants for all remedies)

11

12

48. Plaintiffs reallege and incorporate by this reference each of the above allegations as if

13 fully rewritten herein.

14

49. Plaintiffs bring this claim on behalf of themselves and the above-defined class.

15

50. The Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution

16 mandates that a state actor shall not “deny to any person within its jurisdiction the equal protection of

17 the laws.” U.S. Const. amend. XIV, § 1.

18

51. The Equal Protection Clause is enforced through 42 U.S.C. section 1983 (“Section

19 1983”), which provides:

Every person who, under color of any statute, ordinance, regulation,

20

custom, or usage of any State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of the United States or

21

other person within the jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution and laws, shall be

22

liable to the party injured in an action at law, suit in equity, or other proper

proceeding for redress, . . .

23

52. Under Section 1983, Defendants may be held liable for their violation of the rights of

24
female student-athletes under the Fourteenth Amendment, namely by treating them differently than male

25
athletes.
26
53.

Defendants violate the Equal Protection rights of UC Davis female students by offering

27
them fewer athletic participation and scholarship opportunities than males. Defendants offer more
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1 athletic participation and scholarship opportunities for men than for women. The ongoing

2 discrimination against women students at UC Davis violates the Equal Protection rights of Plaintiffs and

3 the proposed plaintiff class.

4

54. Defendants intentionally discriminate against female students such as Plaintiffs and

5 intentionally deprive them of their right to equal protection under the Fourteenth Amendment to the U.S.

6 Constitution by, among other things, treating them differently from male students by: (1) failing to

7 provide them with equal athletic participation opportunities (including all the benefits, advantages,

8 privileges, services, and access to facilities and coaching provided in connection with varsity athletic

9 participation opportunities); and (2) failing to provide them with equal athletic financial assistance.

10

55. When Defendants engaged in the discriminatory actions described above, they were

11 acting under color of law under 42 U.S.C. section 1983.

12

56. Defendants’ discriminatory actions violate the Equal Protection Clause of the Fourteenth

13 Amendment to the U.S. Constitution, as enforced through Section 1983.

14

57. Each of the individual defendants had knowledge of, participated in or otherwise had

15 authority over and approved the discriminatory decisions made and actions taken that deny Plaintiffs of

16 their right to equal protection. Their actions, which continue to this day, constitute a knowing disregard

17 and deliberate indifference for Plaintiffs’ constitutional rights. Accordingly, each of the individual

18 defendants is individually liable for his discriminatory actions.

19

58. Plaintiffs seek injunctive relief that requires Defendants to provide them with equal

20 protection to the class by offering equal athletic participation and scholarship opportunities for female

21 athletes.

22

59. As a result of Defendants’ discriminatory actions, Plaintiffs have been denied their

23 constitutional right to equal protection and to enjoy an equal opportunity to participate in varsity

24 athletics and to receive athletic financial assistance. Plaintiffs have further incurred damages, including,

25 among other things, the damages associated with lost educational opportunities, increased education

26 expenses, emotional distress, lost self-esteem and confidence, humiliation, and other compensatory

27 damages that result from being denied equal opportunity on the basis of sex.

28 13
COMPLAINT WITH JURY DEMAND

Case 2:07-cv-01488-FCD-EFB Document 1 Filed 07/24/07 Page 15 of 21

THIRD CLAIM FOR RELIEF:

1

UNRUH CIVIL RIGHTS ACT

(Against all Defendants)

2

60. Plaintiffs reallege and incorporate by this reference each of the above allegations as if

3
fully rewritten herein.

4
61. Plaintiffs bring this claim on behalf of themselves and the above-defined class.

5
62. The Unruh Civil Rights Act, California Civil Code section 51 et seq., prohibits

6
discrimination in public accommodations and services. It provides in relevant part:

7

(b) All persons within the jurisdiction of this state are free and equal, and

8

no matter what their sex, . . . are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all

9

business establishments of every kind whatsoever.

Cal. Civ. Code § 51(b).
10

63. California Civil Code section 52 provides for a private right of action for treble damages
11

against any person who discriminates in violation of Section 51:
12

(a) Whoever denies, aids or incites a denial, or makes any discrimination

13

or distinction contrary to Section 51, 51.5, or 51.6, is liable for each and

every offense for the actual damages, any amount that may be determined

14

by a jury, or a court sitting without a jury, up to a maximum of three times

the amount of actual damage but in no case less than four thousand dollars

15

($4,000), and any attorney’s fees that may be determined by the court . . . .

. . . .
16

(e) Actions brought pursuant to this section are independent of any other

17

actions, remedies, or procedures that may be available to an aggrieved

party pursuant to any other law.
18

Cal. Civ. Code §§ 52(b) & (e).

19

64. Public educational institutions such as UC Davis are subject to the Unruh Civil Rights

20

Act under California law and thus must not engage in sex discrimination in the provision of any

21

“accommodations, advantages, facilities, privileges, or services.”

22

65. As set forth above, Defendants decide how many athletic participation opportunities to

23

provide to male and female students by choosing which sports to offer and how many participants to

24

allow on each sports team. Defendants also decide how much athletic financial assistance to provide to

25

male and female students by deciding how many athletic scholarships and other financial benefits to

26

offer to members of each sex in each sport.

27

66. Defendants’ decisions to offer fewer athletic participation opportunities to female

28

14

COMPLAINT WITH JURY DEMAND

Case 2:07-cv-01488-FCD-EFB Document 1 Filed 07/24/07 Page 16 of 21

1 students and to offer less athletic financial assistance to female students constitute disparate treatment

2 and intentional discrimination against female students.

3

67. Defendants violate the Unruh Civil Rights Act by failing to provide female students with:

4 (1) equal athletic participation opportunities (including all the benefits, advantages, privileges, services,

5 and access to facilities and coaching provided in connection with varsity athletic participation

6 opportunities); and (2) equal athletic financial assistance.

7

68. Plaintiffs seek injunctive relief that requires Defendants to provide them with equal

8 access to public accommodations and services by offering more athletic participation opportunities and

9 more athletic scholarships for female athletes.

10

69. As a result of Defendants’ discriminatory actions, Plaintiffs have been denied their civil

11 right to enjoy an equal opportunity to participate in varsity athletics and to receive athletic financial

12 assistance. Plaintiffs have further incurred damages, including, among other things, the damages

13 associated with lost educational opportunities, increased education expenses, emotional distress, lost

14 self-esteem and confidence, humiliation, and other compensatory damages that result from being denied

15 equal opportunity on the basis of sex.

16

70. Plaintiffs seek damages on behalf of themselves and the plaintiff class.

17

FORTH CLAIM FOR RELIEF:

CALIFORNIA PUBLIC POLICY

18

(Against all Defendants)

19

71. Plaintiffs reallege and incorporate by this reference each of the above allegations as if

20 fully rewritten herein.

21

72. Plaintiffs bring this claim on behalf of themselves and the above-defined class.

22

73. The State of California has expressed a clear public policy against discrimination in the

23 provision of educational opportunities, public accommodations, and public services through numerous

24 constitutional and statutory provisions, including California Constitution article I, sections 7 and 31;

25 California Education Code section 220 et seq.; and California Education Code sections 66016, 66030,

26 & 66250 et seq.

27

74. California Constitution article I, section 7 expressly declares this public policy:

28

(a) A person may not be deprived of life, liberty, or property without

15

COMPLAINT WITH JURY DEMAND

Case 2:07-cv-01488-FCD-EFB Document 1 Filed 07/24/07 Page 17 of 21

due process of law or denied equal protection of the laws; . . .

1

. . . .

2

In amending this subdivision, the Legislature and people of the

State of California find and declare that this amendment is

3

necessary to serve compelling public interests, including those of

making the most effective use of the limited financial resources

4

now and prospectively available to support public education,

maximizing the educational opportunities, and protecting the

5

health and safety of all public school pupils, . . .

6

(b) A citizen or class of citizens may not be granted privileges or

immunities not granted on the same terms to all citizens.

7
75. California Constitution article I, section 31 expressly states that:

8

(a) The state shall not discriminate against, or grant preferential

treatment to, any individual or group on the basis of race, sex, . . .

9

in the operation of public employment, public education, or public

contracting . . . .

10

. . . .

11

(f) For purposes of this section, “state” shall include, . . . the

University of California, . . .
12

76. California Education Code section 220 states:

13
No person shall be subjected to discrimination on the basis of sex, . . . in

14

any program or activity conducted by an educational institution that

receives, or benefits from, state financial assistance or enrolls pupils who

15

receive state student financial aid.

16

77. The discriminatory athletic programs operated by Defendants fall within the requirements

17 of this section.

18

78. California Education Code section 221.7 expressly prohibits discrimination in

19 educational athletics:

(a) The Legislature finds and declares that female pupils are not

20

accorded opportunities for participation in school-sponsored

athletic programs equal to those accorded male pupils. It is the

21

intent of the Legislature that opportunities for participation in

athletics be provided equally to male and female pupils.

22
79. California Education Code section 262.4 declares that the Educational Equity provisions

23
of the code “may be enforced through a civil action.” Thus, the educational equity policy dictates of the

24
California Legislature are enforceable both directly and through public policy tort.

25
80. California Education Code section 66016 also expressly prohibits discrimination in

26
educational athletics:

27

It is the intent of the Legislature that opportunities for participation in

28

intercollegiate athletic programs . . . in the campuses of the University of

16

COMPLAINT WITH JURY DEMAND

Case 2:07-cv-01488-FCD-EFB Document 1 Filed 07/24/07 Page 18 of 21

California be provided on as equal a basis as is practicable to male and

1

female students.

2

81. California Education Code section 66030 expresses the general public policy in favor of

3 sex equity:

4

5

6

7

8

9

82.

(a) It is the intent of the Legislature that public higher education in California strive to provide educationally equitable environments which give each Californian, regardless of ethnic origin, race, gender, . . . a reasonable opportunity to develop fully his or her potential.
(b) It is the responsibility of the governing boards of institutions of higher education to ensure and maintain multicultural learning environments free from all forms of discrimination and harassment, in accordance with state and federal law.
California also has a Sex Equity in Education Act, California Education Code section

10 66250 et seq. Section 66251 of that Sex Equity in Education Act states:

11

It is the policy of the State of California to afford all persons, regardless of

their sex, . . . equal rights and opportunities in the postsecondary

12

institutions of the state. The purpose of this chapter is to prohibit acts that

are contrary to that policy and to provide remedies therefor.

13

83. Section 66252 of the Sex Equity in Education Act further states:

14

(a) All students have the right to participate fully in the educational

process, free from discrimination and harassment.

15

(b) California’s postsecondary educational institutions have an

16

affirmative obligation to combat racism, sexism, and other forms

of bias, and a responsibility to provide equal educational

17

opportunities.

. . . .

18

(g) It is the intent of the Legislature that this chapter shall be

19

interpreted as consistent with . . . Title IX . . . the Unruh Civil

Rights Act . . . .

20

84. The postsecondary institutions covered by this act include the University of California.

21
Cal. Educ. Code § 66261.5.

22
85. On information and belief, The Regents has issued the appropriate resolutions to adopt

23
these rules and principles of nondiscrimination.

24
86. These legislative declarations clearly express that it is the public policy of the State of

25
California that no educational institution, including UC Davis, engage in sex discrimination in the

26
provision or operation of any educational program, including athletics.

27
87. As described in the claims above, Defendants violate this public policy by treating male

28 17

COMPLAINT WITH JURY DEMAND

Case 2:07-cv-01488-FCD-EFB Document 1 Filed 07/24/07 Page 19 of 21

1 and female students differently by: (1) failing to provide female students with equal athletic

2 participation opportunities (including all the benefits, advantages, privileges, services, and access to

3 facilities and coaching provided in connection with varsity athletic participation opportunities); and (2)

4 failing to provide female students with equal athletic financial assistance.

5

88. Plaintiffs seek injunctive relief that requires Defendants to comply with this public policy

6 by, among other things, providing them with equal varsity athletic participation opportunities and equal

7 athletic financial assistance.

8

89. As a result of Defendants’ discriminatory actions and violation of California public

9 policy, Plaintiffs have been denied their civil right to enjoy an equal opportunity to participate in varsity

10 athletics and to receive athletic financial assistance. Plaintiffs have further incurred damages, including,

11 among other things, the damages associated with lost educational opportunities, increased education

12 expenses, emotional distress, lost self-esteem and confidence, humiliation, and other compensatory

13 damages that result from being denied equal opportunity on the basis of sex.

14

INJUNCTIVE RELIEF

15

90. Defendants’ unlawful acts deprived Plaintiffs of rights guaranteed by federal law, the

16 U.S. Constitution, and California state law. Plaintiffs are entitled to injunctive relief to end Defendants’

17 discriminatory actions, and to compel Defendants to provide equal athletic participation and scholarship

18 opportunities for female students by establishing varsity opportunities for women at UC Davis sufficient

19 to eliminate the gender disparities in athletic opportunities and that reflect interest and ability of women

20 athletes in field hockey, wrestling, rugby, and/or other sports.

21

91. Failure to grant the injunctive relief requested will result in irreparable harm in that

22 Plaintiffs’ rights will continue to be violated and they will forever be denied the opportunity to

23 participate in college athletics. Plaintiffs do not have an adequate remedy at law for this harm.

24

92. The continuing harm caused by Defendants’ discriminatory actions far outweighs any

25 possible harm that granting injunctive relief might cause Defendants. In fact, Plaintiffs can conceive of

26 no harm that Defendants will suffer by increasing varsity athletic participation and scholarship

27 opportunities for women student athletes at UC Davis. Meanwhile, Plaintiffs believe that Defendants

28 18
COMPLAINT WITH JURY DEMAND

Case 2:07-cv-01488-FCD-EFB Document 1 Filed 07/24/07 Page 20 of 21

1 will gain public relations and enrollment advantages by complying with federal civil rights laws.

2

93. Finally, the injunctive relief that Plaintiffs seek would in no way disserve the public

3 interest but, on the contrary, would benefit the public and would promote compliance with and full

4 equality before the law.

5

ATTORNEYS’ FEES

6

94. Plaintiffs have been required to retain counsel to prosecute this action. They are entitled

7 to recover reasonable attorneys’ fees and expenses under 42 U.S.C. section 1988 and California state

8 law. They are also entitled to recover costs under Federal Rules of Civil Procedure, rule 54(d) and other

9 applicable law.

10

RELIEF REQUESTED

11 WHEREFORE, Plaintiffs respectfully pray that this Court:

12

A. Issue an order certifying a class of all present and future women students at UC Davis

13 who participate in, seek to participate in and/or are deterred from participating in intercollegiate athletics

14 at UC Davis and appoint Plaintiffs’ counsel as Class Counsel pursuant to the Federal Rules of Civil

15 Procedure, rule 23(g).

16

B. Enter an order declaring that Defendants violated and continue to violate Plaintiffs’ civil

17 and constitutional rights under Title IX, the Equal Protection Clause of the Fourteenth Amendment to

18 the United States Constitution, the California Unruh Civil Rights Act, and California public policy by

19 discriminating against female students on the basis of sex by, among other things: (1) failing to provide

20 female students with equal athletic participation opportunities (including all the benefits, advantages,

21 privileges, services, and access to facilities and coaching provided in connection with varsity athletic

22 participation opportunities); and (2) failing to provide female students with equal athletic financial

23 assistance.

24

C. Issue an injunctive relief order: (1) restraining Defendants from engaging in sex

25 discrimination in the administration of the UC Davis athletic programs; (2) requiring Defendants to

26 increase athletic participation opportunities for female students by establishing women’s varsity teams

27 that reflect interest and ability of women athletes in field hockey, wrestling, rugby, and/or other sports

28 19
COMPLAINT WITH JURY DEMAND

Case 2:07-cv-01488-FCD-EFB Document 1 Filed 07/24/07 Page 21 of 21

1 (with all the benefits, advantages, privileges, services, and access to facilities and coaching provided in

2 connection with varsity athletic participation opportunities) or other appropriate measures; and (3)

3 requiring Defendants to increase athletic financial assistance for female athletes.

4

D. Award Plaintiffs and the plaintiff class compensatory damages according to proof.

5

E. Award treble and/or punitive damages to the extent permitted by law.

6

F. Award Plaintiffs their reasonable attorneys’ fees, expenses, and costs.

7

G. Order such other and further relief as the Court deems appropriate.

8

H. Plaintiffs herein demand trial by jury on these claims.

9

10
DATED: July 24, 2007
11

EQUAL RIGHTS ADVOCATES

12

y: /s/ oreen FarrelNl B

NOREEN FARRELL

13

Attorneys for Plaintiffs

14

15
A
16
17
18

THE STURDEVANT LAW FIRM Professional Corporation
By: /s/ Monique Olivier MONIQUE OLIVIER Attorneys for Plaintiffs

19

20

21

22

23

24

25

26

27

28 20
COMPLAINT WITH JURY DEMAND

 
 Case 2:07-cv-01488-FCD-EFB Document 35 Filed 12/12/2007 Page 1 of 20

1

2

3

4

5

6

7

8

9

10

UNITED STATES DISTRICT COURT

11

EASTERN DISTRICT OF CALIFORNIA

12

----oo0oo----

13 KELSEY BRUST; JESSICA BULALA; LAURA LUDWIG; and all those
14 similarly situated,

15

Plaintiffs,

NO. 2:07-cv-1488 FCD/EFB

16

v.

MEMORANDUM AND ORDER

17 REGENTS OF THE UNIVERSITY OF CALIFORNIA; LARRY VANDERHOEF;
18 and GREG WARZECKA,

19

Defendants.

20

----oo0oo----

21

This matter is before the court on defendants’ motion to

22 dismiss plaintiffs’ complaint pursuant to Federal Rule of Civil

23 Procedure 12(b)(6). Plaintiffs oppose defendants’ motion. For

24 the reasons set forth below,1 defendants’ motion is GRANTED in

25 part and DENIED in part.

26 /////

27

28

1

Because oral argument will not be of material

assistance, the court orders this matter submitted on the briefs.

See E.D. Cal. Local Rule 78-230(h).

Case 2:07-cv-01488-FCD-EFB Document 35 Filed 12/12/2007 Page 2 of 20

1

BACKGROUND2

2

Plaintiffs Kelsey Brust (“Brust”), Jessica Bulala

3 (“Bulala”), and Laura Ludwig (“Ludwig”) are women and current

4 students at the University of California, Davis (“UCD”). (Pls.’

5 Compl. [Docket #1] (“Compl.”), filed July 24, 2007, at ¶ 11).

6 All are highly skilled athletes who participate in club sports at

7 UCD and who desire and are eligible to participate in sports at

8 the varsity level. (Id.) Plaintiffs filed this action on behalf

9 of themselves and a putative class on July 24, 2007, contending

10 that defendants have engaged in systemic discrimination on the

11 basis of gender at UCD by failing to provide equitable varsity

12 athletic opportunities for women and by eliminating existing

13 female varsity athletic participation and scholarship

14 opportunities at UC Davis. (Id. ¶ 1).

15

Plaintiff Brust enrolled at UCD in September 2006. (Id. ¶

16 11(a)). Plaintiff Bulala enrolled at UCD in September 2005.

17 (Id. ¶ 11(b)). Both Brust and Bulala are a field hockey players

18 who have been involved in the sport since childhood and who

19 played at a high level competitively in high school. (Id. ¶¶

20 11(a)-(b)). Both have played field hockey on the UCD field

21 hockey club team. (Id.) Plaintiff Ludwig enrolled at UCD in

22 2004. (Id. ¶ 11©). She is a wrestler and rugby player who

23 wrestled in all four years of highschool. (Id.) She wanted to

24 wrestle at UCD, but was unable to do so because UCD eliminated

25 women’s varsity wrestling. (Id.) Ludwog currently plays rugby

26 on the UCD rugby club team. (Id.)

27

2

The following facts are primarily derived from

28 plaintiffs’ complaint filed July 24, 2007.

2

Case 2:07-cv-01488-FCD-EFB Document 35 Filed 12/12/2007 Page 3 of 20

1

Plaintiffs bring claims against defendant Regents of the

2 University of California (“Regents” or “UCD”), defendant Larry

3 Vanderhoef, Ph.D. (“Vanderhoef”), the Chancellor of UCD, and

4 defendant Greg Warzecka (“Warzecka”), the athletic director at

5 UCD. (Id. ¶¶ 14-16). Plaintiffs allege that Vanderhoef and

6 Warzecka have authority over the athletic programs at UCD and

7 that each has participated in or is otherwise responsible for the

8 discriminatory actions and decisions alleged, including the

9 continued inequitable provision of athletic participation

10 opportunities and scholarships to female students. (Id. ¶ 17).

11

Plaintiffs contend that UCD has a continuing practice of

12 providing its male students with greater athletic opportunities.

13 (Id. ¶ 23). Plaintiffs allege that during the 2005-2006 academic

14 year women comprised approximately 56% of the student population,

15 but that women comprised only 50% of the participant on

16 intercollegiate varsity teams offered by UCD. (Id. ¶ 22).

17 Plaintiffs also allege that UCD previously cut women from the

18 varsity wrestling team on the basis of their gender, that UCD has

19 failed to effectively respond to interest expressed by several

20 women’s sports club to obtain varsity status, that many women

21 student athletes have an interest in varsity athletic

22 opportunities and financial assistance that has not been

23 satisfied, and that many prospective UCD students have similar

24 interests that UCD has not addressed. (Id. ¶ 25).

25

Plaintiffs bring four claims for injunctive and monetary

26 relief: (1) a claim against UCD for violation of Title IX for

27 failure to provide equal athletic opportunities and athletic

28 financial assistance for women; (2) a claim for injunctive relief

3

Case 2:07-cv-01488-FCD-EFB Document 35 Filed 12/12/2007 Page 4 of 20

1 against UCD and for injunctive and monetary relief against the

2 individual defendant for violation of 42 U.S.C. § 1983 based on

3 the Equal Protection clause of the U.S. Constitution; (3) a claim

4 against all defendants for violation of the California Unruh

5 Civil Rights Act; and (4) a claim against all defendant for

6 violation of public policy based upon violations of the

7 California Constitution and the California Education Code. (Id.

8 ¶¶ 26-89). Defendants filed a motion to dismiss pursuant to

9 Federal Rule of Civil Procedure 12(b)(6) on October 26, 2007.

10 (Defs.’ Mot. to Dismiss [Docket #20-26], filed October 26, 2007).

11

STANDARD

12

On a motion to dismiss, the allegations of the complaint

13 must be accepted as true. Cruz v. Beto, 405 U.S. 319, 322

14 (1972). The court is bound to give plaintiff the benefit of

15 every reasonable inference to be drawn from the “well-pleaded”

16 allegations of the complaint. Retail Clerks Int’l Ass'n v.

17 Schermerhorn, 373 U.S. 746, 753 n.6 (1963). Thus, the plaintiff

18 need not necessarily plead a particular fact if that fact is a

19 reasonable inference from facts properly alleged. See id.

20

Nevertheless, it is inappropriate to assume that the

21 plaintiff “can prove facts which it has not alleged or that the

22 defendants have violated the . . . laws in ways that have not

23 been alleged.” Associated Gen. Contractors of Calif., Inc. v.

24 Calif. State Council of Carpenters, 459 U.S. 519, 526 (1983).

25 Moreover, the court “need not assume the truth of legal

26 conclusions cast in the form of factual allegations.” United

27 States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th

28 Cir. 1986).

4

Case 2:07-cv-01488-FCD-EFB Document 35 Filed 12/12/2007 Page 5 of 20

1

Ultimately, the court may not dismiss a complaint in which

2 the plaintiff has alleged “enough facts to state a claim to

3 relief that is plausible on its face.” Bell Atlantic Corp. v.

4 Twombly, 127 S.Ct. 1955 (2007). Only where a plaintiff has not

5 “nudged [his or her] claims across the line from conceivable to

6 plausible,” is the complaint properly dismissed. Id. “[A] court

7 may dismiss a complaint only if it is clear that no relief could

8 be granted under any set of facts that could be proved consistent

9 with the allegations.” Swierkiewicz v. Sorema N.A., 534 U.S.

10 506, 514 (2002) (quoting Hudson v. King & Spalding, 467 U.S. 69,

11 73 (1984)).

12

In ruling upon a motion to dismiss, the court may consider

13 only the complaint, any exhibits thereto, and matters which may

14 be judicially noticed pursuant to Federal Rule of Evidence 201.

15 See Mir v. Little Co. Of Mary Hospital, 844 F.2d 646, 649 (9th

16 Cir. 1988); Isuzu Motors Ltd. v. Consumers Union of United 17 States, Inc., 12 F.Supp.2d 1035, 1042 (C.D. Cal. 1998).3

18

ANALYSIS

19 I. 20

Title IX Plaintiffs contend that defendant UCD4 intentionally

21 discriminates against female students by, inter alia, choosing to

22 make fewer athletic opportunities available to female students

23

24

3

Defendants request that the court take judicial notice

of certain documents. These documents are not relevant to the

25 court’s analysis. As such, defendants’ request is DENIED.

26

4

Plaintiffs concede that they cannot seek punitive

damages against defendant UCD. (Pls.’ Opp’n to Defs.’ Mot. to 27 Dismiss (“Pls. Opp’n”) [Docket #30], filed Nov. 30, 2007, at 1).

Therefore, defendants’ motion to dismiss plaintiffs’ claims for 28 punitive damages is GRANTED.

5

Case 2:07-cv-01488-FCD-EFB Document 35 Filed 12/12/2007 Page 6 of 20

1 than to male students. (Compl. ¶ 38). Claims brought under an

2 effective accommodation theory stem from the implementing

3 regulations that provide:

4

in determining whether equal athletic opportunities for

members of both sexes are available, the Office of

5

Civil Rights of the Department of Education (the office

charged with enforcement of Title IX) will consider,

6

among other factors, “[w]hether the selection of sports

and levels of competition effectively accommodate the

7

interests and abilities of members of both sexes.”

8 Pederson v. Louisiana State Univ., 213 F.3d 858, 865 n.4 (5th

9 Cir. 2000) (citing Boucher, Boucher v. Syracuse Univ., 164 F.3d

10 113, 115 n.1 (2d Cir. 1999); 34 C.F.R. § 106.41(c)(1)). In

11 deciding whether a plaintiff can state an “ineffective

12 accommodation” claim, courts look to the three part compliance

13 test set forth in 44 Fed. Reg. 71,418. Roberts v. Colorado State

14 Bd. of Agriculture, 998 F.2d 824, 828-29 (10th Cir. 1993). This

15 provision sets forth that the analysis should include:

16

(1) Whether intercollegiate level participation

opportunities for male and female students are

17

provided in numbers substantially proportionate to

their respective enrollments; or

18

(2) Where the members of one sex have been and are

19

under represented among intercollegiate athletes,

whether the institution can show a history and

20

continuing practice of program expansion which is

demonstrably responsive to the developing interest

21

and abilities of the members of that sex; or

22

(3) Where the members of one sex are under represented

among intercollegiate athletes, and the

23

institution cannot show a continuing practice of

program expansion such as that cited above,

24

whether it can be demonstrated that the interests

and abilities of the members of that sex have been

25

fully ant effectively accommodated by the present

program.

26

27 44 Fed. Reg 71, 418 (1979). The “substantial proportionality”

28 prong “provides a safe harbor for recipients under Title IX.”

6

Case 2:07-cv-01488-FCD-EFB Document 35 Filed 12/12/2007 Page 7 of 20

1 Roberts, 998 F.2d at 829. Defendants argue that plaintiffs’

2 claim for ineffective accommodation must fail as a matter of law

3 because the 6% disparity between female enrollment and female

4 varsity-level athletic participation alleged in the complain is

5 substantially proportionate for purposes of Title IX.

6

Courts have followed the Office for Civil Rights

7 instructions to its Title IX investigators that “[t]here is no

8 set ratio that constitutes ‘substantially proportionate’ or that,

9 when not met, results in a disparity or a violation.” Id.

10 (quoting Office for Civil Rights, Department of Education, Title

11 IX Athletics Investigator’s Manual 24 (1990)); Beasley v. Alabama

12 State Univ., 3 F. Supp. 2d 1325, 1335 (M.D. Ala. 1998). However,

13 “substantially proportionate” does require a “fairly close

14 relationship” between undergraduate enrollment and athletic

15 participation.” Id. at 830.

16

Plaintiffs contend that the actual disparity between the

17 number of women enrolled at UCD and the number of women

18 participants in varsity athletics at UCD is inherently a matter

19 of fact. The 6% disparity alleged in the complaint and relied

20 upon in defendants’ motion to dismiss is based upon statistics

21 disclosed by UCD pursuant to the Equity in Athletics Disclosure

22 Act (“EADA”), 20 U.S.C. § 1092, during the 2005-2006 academic

23 year. (Compl. ¶ 22). Plaintiffs do not contend that this number

24 is necessarily accurate. Moreover, plaintiffs contend that even

25 if the 6% statistic is accurate, this disparity is not

26 “substantially proportionate” because, given the large size of

27 UCD’s enrollment, more than 80 women are denied equal athletic

28 opportunity. (Compl. ¶¶ 21-22).

7

Case 2:07-cv-01488-FCD-EFB Document 35 Filed 12/12/2007 Page 8 of 20

1

The court agrees that the inquiry into substantial

2 proportionality in this case presents issue of fact not

3 appropriately resolved on a motion to dismiss. Plaintiffs may be

4 able to offer evidence that the disparity is greater than that

5 disclosed by UCD. Plaintiffs may also be able to present

6 evidence that a 6% disparity has a disproportionate impact on

7 women enrolled at UCD due to the size of its enrollment and

8 athletic program; this disproportionate impact may affect the

9 court’s analysis of whether the athletic opportunities are

10 “substantially proportionate.” Viewing the allegations of the

11 complaint in the light most favorable to the plaintiffs and

12 drawing all reasonable inferences therefrom, plaintiffs have

13 sufficiently pled a violation of Title IX based upon ineffective

14 accommodation. Therefore, defendants’ motion to dismiss 15 plaintiffs’ Title IX claim is DENIED.5

16 II. 42 U.S.C. § 1983

17

Plaintiffs bring claims under 42 U.S.C. § 1983 against UCD

18 for injunctive relief and against the individual defendants for

19 injunctive and monetary relief based upon alleged violations of

20 the Equal Protection Clause. Defendants argue that plaintiffs’ §

21 1983 claim must be dismissed because it is subsumed by Title IX.

22

23

24

5

Defendants move to dismiss plaintiffs’ claim under

Title IX based upon unequal financial assistance. In their 25 opposition, plaintiffs clarify that they are not alleging a

separate claim or an element of a claim based upon unequal 26 financial assistance, but rather, that the factual allegations

relating to financial assistance support their ineffective 27 accommodation claim. (Pls.’ Opp’n at 1, 11). Therefore, because

plaintiffs are not pressing an ineffective accommodation claim, 28 defendants’ motion to dismiss this claim is DENIED as MOOT.

8

Case 2:07-cv-01488-FCD-EFB Document 35 Filed 12/12/2007 Page 9 of 20

1 Plaintiffs claim that their section 1983 claim is not subsumed,

2 but can coexist with their Title IX claims.

3

There is presently a split in circuit authority as to

4 whether Title IX subsumes a claim under § 1983. Compare

5 Fitzgerald v. Barnstable Sch. Comm., 504 F.3d 165, 179-80 (1st

6 Cir. 2007) (holding that plaintiff’s § 1983 claim based upon

7 alleged Equal Protection Clause violations were precluded by

8 Title IX’s remedial scheme); Bruneau v. South Kortright Cent.

9 Sch. Dist., 163 F.3d 749, 758 (2d Cir. 1998) (“[A] § 1983 claim

10 based on the Equal Protection Clause is subsumed by Title IX),

11 and Waid v. Merrill Area Pub. Sch., 91 F.3d 857, 862 (7th Cir.

12 1996) (holding that a plaintiff may not claim that a single set

13 of facts leads to causes of action under both Title IX and

14 section 1983), and Pfeiffer v. Marion Ctr. Area Sch. Dist., 917

15 F.2d 779, 789 (3d Cir. 1990) (same), and Travis v. Folsom Cordova

16 Unified Sch. Dist., 2007 U.S. Dist. LEXIS 11566 (E.D. Cal. 2007)

17 (holding that “Title VI is sufficiently comprehensive to evince

18 congressional intent to foreclose a § 1983 remedy”), with

19 Communities for Equity v. Mich. Hish Sch. Athletic Ass’n, 459

20 F.3d 676, 683-86 (6th Cir. 2006); Crawford v. Davis, 109 F.3d

21 1281, 1284 (8th Cir. 1997) (holding that Title IX has no

22 preemptive power over section 1983 claims), and Seamons v. Snow,

23 84 F.3d 1226, 1233 (10th Cir. 1996) (holding that plaintiff has

24 independent rights under Title IX and under § 1983), and Lillard

25 v. Shelby County Bd. of Educ., 76 F.3d 716, 722-23 (6th Cir.

26 1996) (holding that a § 1983 claim seeks to enforce distinct and

27 independent substantive due process rights).

28

9

Case 2:07-cv-01488-FCD-EFB Document 35 Filed 12/12/2007 Page 10 of 20

1

Section 1983 does not create substantive rights, but

2 provides the procedural framework for a plaintiff to bring suit

3 for violations of federal rights. “Section 1983 supplies a cause

4 of action to a plaintiff when a person acting under the color of

5 state law deprives that plaintiff of any ‘rights, privileges, or

6 immunities secured by the Constitution and laws of the United

7 States.’” Bruneau, 163 F.3d at 756 (citing 42 U.S.C. § 1983).

8 However, § 1983 does not provide a remedy for violations of all

9 federal statutes. “When the remedial devices provided in a

10 particular Act are sufficiently comprehensive, they may suffice

11 to demonstrate congressional intent to preclude the remedy of

12 suits under § 1983.” Middlesex County Sewerage Auth. v. Nat’l

13 Sea Clammers Ass’n, 453 U.S. 1, 20 (1981). In determining if

14 Title IX precludes resort to § 1983, courts consider (1) whether

15 plaintiffs’ Title IX claims are “virtually identical” to their

16 constitutional claims, and (2) whether the remedies provided in

17 Title IX indicate that Congress intended to preclude reliance on

18 § 1983. Smith v. Robinson, 468 U.S. 992, 1009 (1984);

19 Communities for Equity, 459 F.3d at 685. While the Ninth Circuit

20 has not decided the specific issue of whether § 1983 claims are

21 subsumed by Title IX, it has recognized that federal statutes may

22 preclude a § 1983 remedy if they are sufficiently comprehensive.

23 See, e.g., Dittman v. California, 191 F.3d 1020, 1028 (9th Cir.

24 1999); Dep’t of Educ. v. Katherine D., 727 F.2d 809, 820 (9th

25 Cir. 1983). The court agrees with the reasoning of the Second

26 Circuit in Bruneau that, under the Sea Clammers doctrine, Title

27 IX’s enforcement scheme is sufficiently comprehensive to subsume

28 plaintiffs’ virtually identical § 1983 claims and demonstrate

10

Case 2:07-cv-01488-FCD-EFB Document 35 Filed 12/12/2007 Page 11 of 20

1 that Congress intended to preclude § 1983 claims when it enacted

2 this statute. See Bruneau, 163 F.3d at 756-57. Contra

3 Communities for Equity, 459 F.3d at 685-86.

4

Plaintiffs’ complaint alleges that defendants violated the

5 Equal Protection rights of UCD female students “by offering them

6 fewer athletic participation and scholarship opportunities than

7 males” and by offering more scholarship opportunities to men.”

8 (Compl. ¶ 53). Plaintiffs’ § 1983 claim is based upon the same

9 factual predicate as their Title IX claim. As such, their claims

10 are under Title IX and the Equal Protection Clause are virtually

11 identical. See Smith, 468 U.S. at 1009; Bruneau, 163 F.3d at

12 758.

13

Moreover, Title IX’s administrative enforcement scheme is

14 complex and designed to ensure compliance with its mandates.

15 Bruneau, 163 F.3d at 756. Under the enforcement scheme, injured

16 persons can file a complaint with the Department of Education

17 (“DOE”), see 34 C.F.R. § 100.7(b) (1997), and the DOE must then

18 investigate the allegations. Id. § 100.7(c); Bruneau, 163 F.3d

19 at 756. The DOE may also periodically conduct its own compliance

20 reviews without a complaint. Id. § 100.7(a); Bruneau, 163 F.3d

21 at 756. If the DOE concludes that a complaint has merit or

22 discovers violations stemming from its own reviews, the DOE will

23 notify the institution and attempt to reconcile the situation

24 through informal means. Id. § 100.7(d); Bruneau, 163 F.3d at

25 756. If the DOE is unsuccessful, it may ultimately terminate

26 federal funding to the institution after an administrative

27 hearing. Id. § 100.8; Bruneau, 163 F.3d at 756. As such, Title

28 IX provides a comprehensive administrative remedial scheme.

11

Case 2:07-cv-01488-FCD-EFB Document 35 Filed 12/12/2007 Page 12 of 20

1

Further, in addition to the robust administrative remedial

2 scheme, the Supreme Court has held that Title IX provides

3 individuals with a private cause of action. See Cannon v. Univ.

4 of Chicago, 441 U.S. 677, 709 (1979). “Once in court, the Title

5 IX plaintiff has access to a full panoply of remedies including

6 equitable relief and compensatory damages.” Bruneau, 163 F.3d at

7 756 (citing Franklin, 503 U.S. 60, 73-76 (1992)). The fact that

8 Title IX provides a private remedy in the courts provides further

9 support for Congress’ intent to subsume a § 1983 remedy with

10 Title IX. Id. at 757 (holding that the legislative history of

11 Title IX that demonstrates clear Congressional intent to provide

12 a private right of action as a remedy to secure enforcement also

13 demonstrates Congressional intent to subsume a § 1983 claim based

14 upon the same deprivation of rights).

15

Therefore, given Title IX’s administrative and judicial

16 remedies, the court adopts the rationale of the Second Circuit

17 and finds that it was Congress’ intent “that a claimed violation

18 of Title IX be pursued under Title IX and not § 1983.” Bruneau,

19 163 F.3d at 757; see Pfeiffer, 917 F.2d at 789; Travis, 2007 U.S.

20 Dist. LEXIS 11566 at *15-16 (holding that Title VI precludes

21 claims brought pursuant to § 1983 arising from the same facts).

22

Plaintiffs contend that Title IX does not provide a remedy

23 for constitutional rights and thus, it cannot subsume a claim for

24 violation of their rights to equal protection. In support of

25 their assertion, plaintiffs cite the decisions from the Sixth,

26 Eighth, and Tenth Circuits, which have carved out an exception to

27 the Sea Cambers doctrine for constitutional rights. See

28 Crawford, 109 F.3d at 1284; Seasons, 84 F.3d at 1233; Lillard, 76

12

Case 2:07-cv-01488-FCD-EFB Document 35 Filed 12/12/2007 Page 13 of 20

1 F.3d at 722-23. Generally, these Circuits reasoned that although

2 the claims may arise from the same factual basis, the Equal

3 Protection clause gives rise to distinct and independent

4 substantive due process rights separate and apart from those

5 rights protected by Title IX.

6

Plaintiffs’ argument is unpersuasive. In Sea Cambers, the

7 Supreme Court focused on the available remedies in deciding

8 whether a claim under § 1983 was precluded by a federal statutory

9 scheme. 453 U.S. at 13, 20. The constitutional right exception

10 focuses on the nature of the underlying right, an inquiry not

11 focused upon by the Court in Sea Cambers. Rather, in Smith v.

12 Robinson, the Supreme Court found that the Education of The

13 Handicapped Act (“EA.”) provided a sufficiently comprehensive

14 enforcement scheme, such that it demonstrated Congress’ intent to

15 preclude a claim under § 1983 for an alleged Equal Protection 16 Clause violation. 468 U.S. at 10136 (“We conclude, therefore,

17 that where the EA. is available to a handicapped child asserting

18 a right to a free appropriate public education, based either on

19 the EA. or on the Equal Protection Clause of the Fourteenth

20 Amendment, the EA. is the exclusive avenue through which the

21 child and his parents or guardian can pursue their claim.”)

22 (emphasis added). Therefore, the court finds that there is not

23 an exception to the Sea Cambers doctrine based upon plaintiffs’

24 assertion of a constitutional right.

25

6

Congress subsequently amended the EA. to explicitly

26 provide that the EA. is not the exclusive remedy. 20 U.S.C. §

1415(f). However, this subsequent amendment to statute does not 27 modify the analysis of the Supreme Court and its clear indication

that there is not a constitutional exception to the Sea Cambers 28 doctrine.

13

Case 2:07-cv-01488-FCD-EFB Document 35 Filed 12/12/2007 Page 14 of 20

1

Plaintiffs also argue that their § 1983 claim cannot be

2 subsumed by their Title IX claim because their § 1983 claim is

3 pressed against not only UCD, but also against the individual

4 defendants who are not named in their Title IX claim. Plaintiffs

5 misconstrue the doctrine of preemption. See Boulahanis v. Bd. of

6 Regents, 198 F.3d 633, 640 (7th Cir. 1999). Through the

7 enactment of Title IX and its remedial scheme, Congress created a

8 regime “for the redress of sex discrimination in athletic

9 opportunities at federally-funded institutions.” Id. That

10 regime need not include the ability to press claims against both

11 the institution and the individuals involved. Id. Rather,

12 “[t]he fact that individual claims are not available under Title

13 IX means that Congress has chosen suits against institutions as

14 the means of redressing such wrongs.” Id. (citing Sea Cambers,

15 435 U.S. at 20); see also Fitgerald, 504 F.3d at 178

16 (“Sanctioning section 1983 actions against individual school

17 officials would permit an end run around [] manifest

18 congressional intent” to aim the weaponry of Title IX at the

19 recipient of federal funds); Waid v. Merrill Area Pub. Sch., 91

20 F.3d 857, 862 (7th Cir. 1996) (“Congress intended to place the

21 burden of compliance with civil rights law on educational

22 institutions themselves, not on the individual officials

23 associated with those institutions.”); Travis, 2007 U.S. Dist.

24 LEXIS 11566 at *16 (“Allowing Plaintiffs to plead around the

25 detailed statutory scheme created by Title VI by pleading a §

26 1983 claim against [the defendant] in his individual capacity

27 would be inconsistent with Congress’ creation of restrictions on

28 Title VI claims.”). As such, plaintiffs’ argument that their §

14

Case 2:07-cv-01488-FCD-EFB Document 35 Filed 12/12/2007 Page 15 of 20

1 1983 claim is not subsumed by Title IX because and to the extent

2 it is asserted against the individual defendants is without 3 merit.7

4

Therefore, because plaintiffs’ § 1983 claim based upon an

5 alleged equal protection violation is subsumed by Title IX,

6 defendants’ motion to dismiss plaintiffs’ § 1983 claim is

7 GRANTED.

8 III. State Law Claims

9

Finally, defendants argue that plaintiffs’ state law claims

10 against them should be dismissed because they are immune from

11 suit. Plaintiffs concede that the Regents (UCD) are immune from

12 their state law claims. The individual defendants contend that

13 they are also immune from suit based upon the discretionary

14 immunity accorded public employees pursuant to California 15 Government Code § 820.2.8

16

Section 820.2 provides immunity to a public employee for

17 injuries resulting from “his act or omission where the act or

18 omission was the result of the exercise of the discretion vested

19 in him, whether or not such discretion be abused.” Cal. Gov’t

20 Code § 820.2 (West 2007). Generally, “a discretionary act is one

21

7

The court clarifies that it does not address the issue

22 of whether a plaintiff could bring a § 1983 claim based upon a

separate and independent wrong by an individual defendant 23 because, in this case, plaintiffs sue the individual defendants

based upon their administration of the Athletic Department at 24 UCD, the same factual basis for their Title IX claim against the

educational institution. See Fitzgerald, 504 F.2d at 180. 25

8

Defendants assert numerous arguments in support of

26 their assertion that plaintiffs’ state law claims against them

should be dismissed. However, as set forth infra, because the 27 court finds that discretionary immunity applies to defendants’

alleged conduct, the court does not address the merits of those 28 arguments.

15

Case 2:07-cv-01488-FCD-EFB Document 35 Filed 12/12/2007 Page 16 of 20

1 which requires the exercise of judgment or choice.” Kemmerer v.

2 County of Fresno, 200 Cal. App. 3d 1426, 1437 (1988). However,

3 California courts have not set forth a definitive rule which

4 resolves every case. Id. Rather, the California Supreme Court

5 has adopted an analysis that relies on the “policy considerations

6 relevant to the purpose of granting immunity to the governmental

7 agency whose employees act in discretionary capacities.” Id.

8 (internal citations omitted).

9

Immunity is reserved for those basic policy decisions

which have been expressly committed to coordinate

10

branches of government, and as to which judicial

interference would thus be “unseemly.” Such areas of

11

quasi-legislative policy-making are sufficiently

sensitive to call for judicial abstention from

12

interference that might even in the first instance

affect the coordinate body’s decision-making process.

13

14 Barner v. Leeds, 24 Cal. 4th 676, 685 (2000) (emphasis added).

15 “Immunity applies only to deliberate and considered policy

16 decisions in which a conscious balancing of risks and advantages

17 took place.” Caldwell v. Montoya, 10 Cal. 4th 972, 981 (1995)

18 (internal quotation omitted). As such, the California Supreme

19 Court has drawn a distinction “between the ‘planning’ and

20 ‘operational’ levels of decision-making.” Johnson v. State, 69

21 Cal. 2d 782, 795 (1968).

22

The California Supreme Court has also noted that in order

23 for § 820.2 immunity to apply, a decision by the public employee

24 need not be “a strictly careful, thorough, formal, or correct

25 evaluation.” Caldwell, 10 Cal. 4th at 983 (“[C]laims of improper

26 evaluation cannot divest a discretionary policy decision of its

27 immunity.”). The Caldwell court reasoned that “[s]uch a standard

28 would swallow an immunity designed to protect against claims of

16

Case 2:07-cv-01488-FCD-EFB Document 35 Filed 12/12/2007 Page 17 of 20

1 carelessness, malice, bad judgment, or abuse of discretion in the

2 formulation of policy.” Id. at 983-84.

3

A fair reading of the complaint reveals allegations that the

4 individual defendants made actual, conscious, and considered

5 collective policy decision. See id. at 984. Plaintiffs allege

6 that “each of the individual defendants has authority over the

7 athletic programs at UC Davis and has participated in or is

8 otherwise responsible for the discriminatory actions and

9 decisions” set forth in the complaint. (Compl. ¶ 17). As such,

10 plaintiffs have alleged that the conduct was within the scope of

11 the individual defendants’ duties. Plaintiffs also allege that

12 defendants intentionally discriminated against female students

13 and that “[e]ach individual defendant had knowledge of,

14 participated in or otherwise had authority over[,] and approved

15 the discriminatory decisions made and actions taken that

16 discriminate against plaintiffs. (Compl. ¶¶ 38, 57). These

17 allegation reveals that the individual defendants’ made actual,

18 conscious decisions with knowledge of the alleged discriminatory

19 purpose or effect.

20

Moreover, plaintiffs’ allegations demonstrate that the

21 alleged discriminatory decisions made by the individual

22 defendants were policy decisions. Plaintiffs allege that

23 “defendants determine the number of athletic opportunities

24 available to male and female students by choosing which sports to

25 offer each sex and by choosing how many athletes they will allow

26 to participate on each sport team.” (Compl. ¶¶ 37; 65).

27 Defendants also decide how much athletic financial assistance to

28 provide to students. (Compl. ¶ 65). Plaintiffs contend that

17

Case 2:07-cv-01488-FCD-EFB Document 35 Filed 12/12/2007 Page 18 of 20

1 defendants intentionally discriminated against females students

2 at UCD by choosing to make fewer athletic opportunities available

3 to female students and by offering less financial assistance to

4 female students. (Compl. ¶¶ 38, 66). As such, the allegations

5 in the complaint allege that defendants’ conduct resulted in a

6 wide-spread effect to all current and prospective female students

7 at UCD. The gravamen of plaintiffs’ claims is that defendants

8 have the authority to provide equal access to athletic

9 opportunities to women at UCD and knowingly choose not to do so.

10 As such, it is clear from the face of the complaint that the

11 alleged decisions made by defendants are “sensitive” issues with

12 “fundamental policy implications.” Caldwell, 10 Cal. 4th at 983.

13

Plaintiffs contend that the court cannot find that § 820.2

14 immunity applies to the individual defendants at the pleading

15 stage because the allegations in the complaint do not reveal that

16 defendants’ decisions were basic policy decisions entitled to

17 immunity as opposed to operational decisions, which are not

18 entitled to immunity. As set forth above, plaintiff’s complaint

19 alleges that defendants made basic policy decisions regarding

20 what athletic opportunities to provide to males and females as

21 well as what financial assistance to provide to female athletes.

22

Moreover, the Supreme Court of California has upheld a

23 court’s determination regarding the applicability of § 820.2

24 immunity at the pleadings stages. Caldwell, 10 Cal. 4th at 983.

25 In Caldwell, the court upheld defendants’ demurrer based upon

26 discretionary immunity where board members allegedly voted to

27 replace the superintendent based upon improper motives of race

28 and age. Id. at 976. The court held that the complaint need not

18

Case 2:07-cv-01488-FCD-EFB Document 35 Filed 12/12/2007 Page 19 of 20

1 disclose a “strictly careful, thorough, formal, or correct

2 evaluation.” Id. at 983. Rather, the court found that the

3 application of § 820.2 immunity could be decided at the pleading

4 stage where “a fair reading of the complaint” demonstrate that

5 the defendant’s conduct “involved an actual exercise of

6 discretion.” Id. In this case, as set forth above, plaintiffs’

7 allegations demonstrate that the conduct by defendants

8 constituted “actual, conscious, and considered” collective policy

9 decisions. Id. at 984.

10

Therefore, because a fair reading of plaintiffs’ complaint

11 reveals allegations that the individual defendants made actual,

12 conscious, and considered collective policy decisions, the

13 individual defendants are entitled to immunity pursuant to 820.2. 14 Thus, defendants’ motion to dismiss plaintiffs’ state law claims9

15 is GRANTED.

16

CONCLUSION

17

For the foregoing reasons, defendants’ motion to dismiss is

18 GRANTED in part and DENIED in part.

19

(1) Defendant UCD’s motion to dismiss plaintiffs’ claim for

20

relief under Title IX based upon a theory of

21

ineffective accommodation is DENIED.

22

23

9

The Supreme Court has explicitly found that § 820.2

24 provides immunity against a public policy tort. Caldwell, 10

Cal. 4th at 984. Moreover, § 820.2 immunity will only fail to 25 apply to basic policy decision where there is a “clear indication

of legislative intent that statutory immunity is withheld or 26 withdrawn” in a particular case. The court has found nothing in

the Unruh Civil Rights Act which clearly evinces such an intent. 27 See id. at 987-88 (finding that FEHA did not carve out an

exception to immunity through the phrase “[e]xcept as otherwise 28 provided by statute”).

19

Case 2:07-cv-01488-FCD-EFB Document 35 Filed 12/12/2007 Page 20 of 20

1

(2) Defendant UCD’s motion to dismiss plaintiffs’ claim for

2

relief under Title IX based upon a theory of unequal

3

financial assistance is DENIED as MOOT.

4

(3) Defendant UCD’s motion to dismiss plaintiffs’ claims

5

for punitive damages under Title IX is GRANTED.

6

(4) Defendants’ motion to dismiss plaintiffs’ claims

7

brought pursuant to 42 U.S.C. § 1983 is GRANTED.

8

(5) Defendants’ motion to dismiss plaintiffs’ state law

9

claims is GRANTED.

10

IT IS SO ORDERED.

11 DATED: December 12, 2007

12

13

_______________________________________

14

FRANK C. DAMRELL, JR.

15

UNITED STATES DISTRICT JUDGE

16

17

18

19

20

21

22

23

24

25

26

27

28

20

 
 Case 2:07-cv-01488-FCD-EFB Document 52 Filed 08/14/08 Page 1 of 2

1 James C. Sturdevant, State Bar No. 94551

(jsturdevant@sturdevantlaw.com)

2 Mark T. Johnson, State Bar No. 76904 (mjohnson@sturdevantlaw.com)

3

Monique Olivier, State Bar No. 190385 (molivier@sturdevantlaw.com)

4

Whitney Huston, State Bar No. 234863 (whuston@sturdevantlaw.com)

5

THE STURDEVANT LAW FIRM A Professional Corporation

6

354 Pine Street, Fourth Floor San Francisco, CA 94104

7

Telephone: (415) 477-2410 Facsimile: (415) 477-2420

8 Debra Smith, State Bar No. 147863 (dsmith@equalrights.org)
9 Noreen Farrell, State Bar No. 191600 (nfarrell@equalrights.org)
10 Lisa Leebove, State Bar No. 186705 (lleebove@equalrights.org)
11 EQUAL RIGHTS ADVOCATES 1663 Mission Street, Suite 250
12 San Francisco, CA 94103 Telephone: (415) 621-0672
13 Facsimile: (415) 621-6744

14 Kristen Galles, State Bar No. 148740 (kgalles@comcast.net)

15

EQUITY LEGAL 10 Rosecrest Avenue

16

Alexandria, VA 22301 Telephone: (703) 683-4491

17 Attorneys for Plaintiffs

18

UNITED STATES DISTRICT COURT

19

EASTERN DISTRICT OF CALIFORNIA [Sacramento Division]

20 KELSEY BRUST, et al.,

CASE NO. 2:07-CV-01488-FCD-EFB

21 22 vs.

Plaintiffs,

23

REGENTS OF THE UNIVERSITY OF CALIFORNIA,

24

Defendant.

25

CLASS ACTION

NOTICE OF PLAINTIFFS’ MOTION AND MOTION FOR CLASS CERTIFICATION

DATE:

October

TIME:

10:00

COURTOOM:

2

3, 2008 a.m.

26

Complaint filed: July 24, 2007 Honorable Frank C. Damrell, Jr.

27

28

NOTICE OF PLAINTIFFS’ MOTION AND MOTION FOR CLASS CERTIFICATION CASE NO. CIV S-03-2591 FCD EFB

Case 2:07-cv-01488-FCD-EFB Document 52 Filed 08/14/08 Page 2 of 2

1 TO ALL PARTIES AND THEIR COUNSEL OF RECORD:

2

Please take notice that on October 3, 2008 at 10:00 a.m., or as soon thereafter as the matter may be

3 heard in Courtroom 2 of the United States District Court, Eastern District of California, Sacramento Division,

4 before the Honorable Frank C. Damrell, Jr., Plaintiffs Kelsey Brust, Laura Ludwig, and Jessica Bulala, on

5 behalf of themselves and all those similarly situated (“Plaintiffs”), will respectfully move this Court for class

6 certification under Rule 23 of the Federal Rules of Civil Procedure and Local Rule 23-205.

7

Plaintiffs request certification of the following class:

8

All present, prospective, and future women students at the University of California at Davis

who seek to participate in and/or who are deterred from participating in intercollegiate

9

athletics at UCD.

10

Plaintiffs make this motion on the grounds that their claims meet the requirements of Federal Rules of

11 Civil Procedure, rules 23(a), 23(b)(2), and 23(b)(1)(A) as set forth in the accompanying brief. Plaintiffs

12 further make this motion on the grounds that class certification is necessary to obtain the injunctive relief

13 which is the primary purpose of this litigation, because the members of the class fluctuate with the normal

14 flow of the student body while the discriminatory treatment will continue indefinitely unless and until the

15 requested injunctive relief is entered.

16

This Motion will be based on this Notice; the Memorandum of Points and Authorities in Support of

17 Plaintiffs’ Motion for Class Certification, filed herewith; the Evidence Submitted By Plaintiffs in Support of

18 Their Motion for Class Certification, filed herewith; the Court’s file in this action; and such other argument or

19 evidence as may be presented at the hearing on the Motion.

20

WHEREFORE, Plaintiffs request that this Court certify this case as a class action as set forth herein.

21

Respectfully submitted,

22 DATED: August 14, 2008

EQUAL

RIGHTS ADVOCATES

23 NOREEN
24

y: /s/ oreen FarreBllN FARRELL
Attorneys for Plaintiffs

25 A
26

THE STURDEVANT LAW FIRM Professional Corporation

27

MONIQUE

28

By: /s/ Monique Olivier OLIVIER
Attorneys for Plaintiffs
1

NOTICE OF PLAINTIFFS’ MOTION AND MOTION FOR CLASS CERTIFICATION

CASE NO. CIV S-03-2591 FCD EFB

 
 1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10

----oo0oo----

11 KELSEY BRUST; JESSICA BULALA; LAURA LUDWIG; and all those
12 similarly situated,

13

Plaintiffs,

NO. CIV. 2-07-1488-FCD-EFB

14

v.

MEMORANDUM AND ORDER

15 REGENTS OF THE UNIVERSITY OF CALIFORNIA; LARRY VANDERHOEF;
16 and GREG WARZECKA,,

17

Defendants.

18

----oo0oo----

19

This matter is before the court on plaintiffs’ Kelsey Brust

20 (“Brust”), Jessica Bulala (“Bulala”), and Laura Ludwig’s

21 (“Ludwig”) (collectively, “plaintiffs”) motion for class 22 certification pursuant to Federal Rule of Civil Procedure 23.1

23

1

Because oral argument will not be of material

24 assistance, the court orders this matter submitted on the briefs.

See E.D. Cal. Local Rule 78-230(h). The extensive briefing and 25 documentary evidence and affidavits filed by the parties renders

an evidentiary hearing unnecessary because the court is able to 26 probe behind the pleadings without additional evidence or

argument. See Communities for Equity v. Mich. High Sch. Athletic 27 Ass’n, 192 F.R.D. 568, 571 (W.D. Mich. 1999); cf. Gen. Tel. Co.

v. Falcon, 457 U.S. 147, 160 (1982) (noting that “it may be 28 necessary for the court to probe behind the pleadings before

1

1 Defendant Regents of the University of California (“UCD” or

2 “defendant”) oppose the motion. For the reasons set forth below,

3 plaintiffs’ motion for class certification is GRANTED.

4

BACKGROUND

5

Plaintiffs Brust, Bulala, and Ludwig are female students at

6 the University of California at Davis (“UCD”). (Decl. of Kelsey

7 Brust in Supp. of Pls.’ Mot. for Class Certification (“Brust

8 Decl.”), filed Aug. 14, 2008, ¶ 1; Decl. of Jessica Bulala in

9 Supp. of Pls.’ Mot. for Class Certification (“Bulala Decl.”),

10 filed Aug. 14, 2008, ¶ 1; Decl. of Laura Ludwig in Supp. of Pls.’

11 Mot. for Class Certification (“Ludwig Decl.”), filed Aug. 14,

12 2008, ¶ 1). Each named plaintiff participated in high school

13 athletics and asserts that she is interested in and has the

14 ability to participate in college varsity athletics. (Brust

15 Decl. ¶¶ 3-8; Bulala Decl. ¶¶ 2-5; Ludwig Decl. ¶¶ 2-7).

16

Plaintiff Brust began playing field hockey while in junior

17 high and continued to play for all four years of high school.

18 (Brust Decl. ¶ 3.) Brust played defense on the varsity team for

19 her sophomore, junior, and senior years and was the team captain

20 her senior year when the team won the Division II Field Hockey

21 championships. (Id.) She currently plays field hockey at the

22 club level at UCD, which has finished in the first or second slot

23 in the Western Collegiate Field Hockey Conference for a number of

24 years. (Id. ¶ 4.) Brust asserts that the UCD women’s field

25 hockey team has sought varsity status on several occasions. (Id.

26 ¶ 7.) On or about July 2008, women’s field hockey was added as

27

28 coming to rest on the certification question”).

2

1 an intercollegiate sport. (Am. Decl. of Greg Warzecka in Supp.

2 of Def.’s Opp’n to Pls.’ Mot. for Class Certification (“Warzecka

3 Decl.”), filed Sept. 11, 2008, ¶ 3). Competition in that sport

4 is scheduled to start in the fall of 2009. (Id.)

5

Plaintiff Bulala began playing field hockey competitively in

6 the sixth grade. (Bulala Decl. ¶ 2). She competed at the

7 varsity level in high school for all four years. (Id.) Her

8 teams tied at the state championships her freshman year, won the

9 county title her sophomore year, won the county and regional

10 titled her junior year, and won the county, regional, and state

11 championships her senior year. (Id.) She currently plays field

12 hockey at the club level at UCD. (Id. ¶ 3.)

13

Plaintiff Ludwig has played competitive sports for many

14 years. (Ludwig Decl. ¶ 2.) She wrestled in high school for

15 three and a half years at the junior varsity and varsity levels.

16 (Id.) She placed in the top ten in the national United States

17 Girls Wrestling Association in her junior and senior years and

18 was named an All American during her senior year in the USA

19 Wrestling Magazine. (Id.) During her freshman year at UCD,

20 Ludwig was interested in participating on the varsity wrestling

21 team, but was directed to the wrestling club team by the coach.

22 (Id. ¶ 3.) Ludwig asserts that there were few competitive

23 opportunities on the club team because it was unorganized and

24 lacked a paid coach. (Id.) During her sophomore year, Ludwig

25 played rugby at the club level. (Id. ¶ 4.) However, during the

26 pre-season of her junior year, she was injured and unable to

27 participate during her junior and senior year. (Id.) Ludwig

28 asserts that because she was a club team member, she did not have

3

1 access to the same medical treatment that a varsity player would

2 receive, and that, if she had such access, she would have

3 continued to play. (Id. ¶ 6.) Ludwig also asserts that the

4 Davis Women’s Rugby Club submitted an application in 2007 for

5 varsity status but was not selected. (Id. ¶ 8.)

6

As club sport team members, plaintiffs must make a financial

7 commitment to play by paying dues, and club teams must raise

8 their own funds for travel, uniforms, coaches, and equipment.

9 (Brust Decl. ¶ 5; Bulala Decl. ¶ 4; Ludwig Decl. ¶ 5.) It is

10 plaintiffs’ understanding that elevation of club teams to varsity

11 status brings with it benefits, including (1) paid coaches; (2)

12 paid equipment and uniforms; (3) access to health benefits and

13 athletic training; (4) access to tutoring and other academic

14 assistance; (5) facility and field priority; and (6)

15 administrative and financial assistance. (Brust Decl. ¶ 6;

16 Bulala Decl. ¶ 5; Ludwig Decl. ¶ 7.) While plaintiffs Brust and

17 Bulala believe that field hockey is a strong candidate for

18 varsity status and plaintiff Ludwig believes that rugby is a

19 strong candidate for varsity status, all plaintiffs assert that

20 they are participating in this litigation in order to obtain more

21 varsity athletic opportunities for all female athletes at UCD.

22 (Brust Decl. ¶ 8; Bulala Decl. ¶ 7; Ludwig Decl. ¶ 8.)

23

Plaintiffs request certification of the following proposed

24 class:

25

All current, prospective, and future women students at

the University of California at Davis who seek to

26

participate in and/or who are deterred from

participating in intercollegiate athletics at UCD.

27

28 (Pls.’ Mot. for Class Certification [Docket #53], filed Aug. 14,

4

1 2008, at 5). On behalf of the class and themselves, named

2 plaintiffs seek declaratory, injunctive, and monetary relief and

3 the other judicial remedies available to them to ensure UCD’s

4 compliance with Title IX, including: (1) a declaration that UCD

5 has violated and continues to violate Title IX; and (2) an

6 injunction: (a) restraining defendant from engaging in sex

7 discrimination in the administration of UCD athletic programs;

8 (b) requiring defendant to increase varsity athletic

9 participation opportunities for female students at UCD and to

10 provide all corresponding benefits of varsity status; and (c)

11 requiring defendant to increase athletic financial assistance for

12 female athletes. (Compl., filed July 24, 2007, ¶ 4.)

13

STANDARD

14

District courts have broad discretion in ruling on motions

15 for class certification because “the district court is in the

16 best position to consider the most fair and efficient procedure

17 for conducting any given litigation.” Doninger v. Pacific

18 Northwest Bell, Inc., 564 F.2d 1304, 1309 (9th Cir. 1977).

19 However, before certifying a class, the court must “conduct a

20 ‘rigorous analysis’ to determine whether the party seeking

21 certification has met the prerequisites of Rule 23” of the

22 Federal Rules of Civil Procedure. Zinser v. Accufix Research

23 Inst., Inc., 253 F.3d 1180, 1186 (9th Cir. 2001) (citing

24 Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1233 (9th Cir.

25 1996)). “The ‘rigorous analysis requirement’ means that a class

26 is not maintainable merely because the complaint parrots the

27 legal requirements of Rule 23.” Communities for Equity, 192

28 F.R.D. 568, 570 (citing In re Am. Med. Sys., Inc., 75 F.3d 1069,

5

1 1079 (6th Cir. 1996)).

2

Under Rule 23(a), there are four threshold requirements

3 applicable to all class actions: (1) the class is so numerous

4 that joinder of all members is impracticable; (2) there are

5 questions of fact common to the class; (3) the claims and

6 defenses of the representative party are typical of the claims

7 and defenses of the class; and (4) the representative party will

8 fairly and adequately represent the interests of the class. Fed.

9 R. Civ. P. 23(a).

10

An action may be maintained as a class action where the

11 above prerequisites are met and one of the conditions enumerated

12 in Rule 23(b) is satisfied. Plaintiffs move for certification

13 under Rule 23(b)(2). Certification under Rule 23(b)(2) is proper

14 where “the party opposing the class has acted or refused to act

15 on grounds generally applicable to the class, thereby making

16 appropriate final injunctive relief or corresponding declaratory

17 relief with respect to the class as a whole.” Fed. R. Civ. P.

18 23(b)(2).

19

The burden is on the party seeking to maintain the action as

20 a class action to establish a prima facie showing of each of the

21 23(a) prerequisites and the appropriate 23(b) ground for a class

22 action. Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019, 1022 (9th

23 Cir. 1998); Mantolete v. Bolger, 767 F.2d 1416, 1424 (9th Cir.

24 1985).

25 /////

26 /////

27 /////

28 /////

6

1

ANALYSIS2

2 A. Rule 23(a)(1): Numerosity

3

The initial inquiry under Rule 23(a) is whether the class is

4 sufficiently numerous that joinder of all members individually is

5 “impracticable.” Fed. R. Civ. P. 23(a)(1); see Communities for

6 Equity, 192 F.R.D. at 571 (“Numbers alone are not dispositive

7 when the numbers are small, but will dictate impracticability

8 when the numbers are large.”). “The requirement does not demand

9 that joinder would be impossible, but rather that joinder would

10 be extremely difficult or inconvenient.” 5 Moore’s Federal

11 Practice § 23.22[1] (3d Ed. 2003).

12

The numerosity requirement imposes no absolute numerical

13 limitation, but, rather, requires that the specific facts of each

14 case be examined. General Tel. Co. v. E.E.O.C., 446 U.S. 318,

15 330 (1980). “Practicability of joinder depends on many factors,

16 including, for example, the size of the class, ease of

17 identifying its numbers and determining their addresses, facility

18 of making service on them if joined and their geographic

19 dispersion.” Kilgo v. Bowman Transp., Inc., 789 F.2d 859, 878

20 (11th Cir. 1986) (upholding class certification where plaintiff

21 identified thirty one individual class members and the class

22

23

2

The court notes that both plaintiffs and defendant

24 devote a disproportionate amount of their briefs to a discussion

of the merits of their underlying claims and defenses that is

25 irrelevant to the requirements of Rule 23. As this is before the

court on a motion for class certification, the court does not

26 address the merits of these irrelevant issues or make any binding

conclusions with respect to any claims or defense. See Eisen v.

27 Carlisle and Jacquelin, 417 U.S. 156, 178 (1974) (noting that

nothing in the language of Rule 23 gives the court authority to

28 conduct a preliminary inquiry into the merits of a suit on a motion for class certification).

7

1 included future and deterred job applicants who were necessarily

2 unidentifiable). Where the class is comprised of more than forty

3 individuals, numerosity is generally satisfied. Cox v. Am. Cast

4 Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir. 1986); see also

5 Leyva v. Buley, 125 F.R.D. 512, 515 (E.D. Wash. 1989) (holding

6 that class consisting of 50 individuals met numerosity

7 requirement). If class members are unknown or unidentifiable,

8 then joinder of all class members is likely impracticable. See

9 Jordan v. Los Angeles County, 669 F.2d 1311, 1319-20 (9th Cir.

10 1982), vacated on other grounds, 459 U.S. 810 (1982) (holding

11 that the numerosity requirement was met because “[t]he joinder of

12 unknown individuals is inherently impracticable”); see also 5

13 Moore’s Federal Practice § 23.22[3] (3d Ed. Supp. 2008) (“It is

14 well established . . . that the party seeking class certification

15 need not be able to prove the exact number of members of the

16 proposed class or to identify each class member.”).

17

Further, where declaratory or injunctive relief is sought,

18 the numerosity requirement may be relaxed “so that even

19 speculative or conclusory allegations regarding numerosity are

20 sufficient to permit class certification.” 5 Moore’s Federal

21 Practice § 23.22[3][b] (3d Ed. Supp. 2008); see also Goodnight v.

22 Shalala, 837 F. Supp. 1564, 1582 (D. Utah 1994).

23

In support of their motion for class certification,

24 plaintiffs present evidence that there are over 600 women playing

25 club sports at UCD and several thousand that participate in

26 intramural sports at UCD. (See Pl.’s Ex. A:21, A:23.)

27 Plaintiffs also present evidence that there are more than six

28 thousand girls in California who participate in high school

8

1 athletic teams that do not have varsity status at UCD. (See

2 Pl.’s Ex. A:28.) Defendant asserts that this evidence is

3 insufficient because it does not demonstrate that those women are

4 necessarily interested in participating in varsity athletics at

5 UCD. However, defendant’s own evidence demonstrates that there

6 is a high level of interest in competition at the intercollegiate

7 level by female students. In a 2004 survey of female freshman

8 interest in athletics (2,426 female freshman), the “best

9 estimate” revealed that 212 female students3 were interested in

10 participating at the varsity level in sports that were not

11 offered by UCD. (Def.’s Ex. P, at MAN6168.) In a similar 2005

12 survey, the “best estimate” revealed that 312 female students

13 were interested in participating at the varsity level in sports

14 that were not offered by UCD. (Def.’s Ex. Q, at MAN6933.) In a

15 2007 survey of female undergraduate interest in athletics (12,431

16 females), the “best estimate” revealed that 561 female students

17 were interested in participating at the varsity level in sports

18 that were not offered by UCD. (Def.’s Ex. R, at 13.) As such,

19 this evidence sufficiently demonstrates that the proposed class

20 meets the numerosity requirement.

21

Defendant also asserts that the numerosity requirement is

22 not met because plaintiffs’ proffered evidence does not include

23 information regarding how many girls who are interested in

24 playing at the intercollegiate level meet the minimum academic

25

26

3

The court notes that respondents to the surveys were

able to mark their interest in more than one sport and level of

27 participation. Therefore, of the responses, some may have been

by the same student. However, the court finds that these surveys

28 are sufficient to demonstrate interest among a large number of

female freshman students.

9

1 requirements for admission at UCD or to participate in

2 intercollegiate athletics at UCD once admitted. Defendant’s

3 argument demonstrates the impracticability of joinder in this

4 case. There are thousands of female athletes that participate in

5 high school athletics in sports that are not offered at the

6 varsity level at UCD. The identity of those prospective and

7 future students who are qualified for admission and are deterred

8 from participating in intercollegiate athletics at UCD because of

9 it’s alleged discriminatory policies is not readily

10 ascertainable, if not impossible to discern, and thus, it is

11 inherently impracticable to join them as parties. See Jordan,

12 669 F.2d at 1319-20; see also Roman v. Korson, 152 F.R.D. 101,

13 111 (W.D. Mich. 1993) (holding that inclusion of future class

14 members was warranted in light of the suggestion of future

15 violations and would avoid unnecessary harm and repetitive

16 litigation).

17

Plaintiffs have presented sufficient evidence to demonstrate

18 that the proposed class is composed of a large number of current

19 women students at UCD who are interested in participating in

20 varsity athletics as well as a significant number of prospective

21 and future women students who are not easily identified. Joinder

22 of all these parties would be impracticable. Accordingly, the

23 numerosity requirement is fulfilled.4

24 /////

25 /////

26

27

4

The court also notes that injunctive and declaratory

relief is the crux of plaintiffs’ requested relief in this

28 litigation. As such, the numerosity requirement is less

stringent.

10

1 B. Rule 23(a)(2): Commonality

2

The next inquiry under Rule 23(a) is whether there exist

3 “questions of law or fact common to the class.” Fed. R. Civ. P.

4 23(a)(2). “The fact that there is some factual variation among

5 the class grievances will not defeat a class action . . . . A

6 common nucleus of operative fact is usually enough to satisfy the

7 commonality requirement of Rule 23(a)(2).” Rosario v. Livaditis,

8 963 F.2d 1013, 1017-18 (7th Cir. 1992). “All questions of fact

9 and law need not be common to satisfy the rule. The existence of

10 shared legal issues with divergent factual predicates is

11 sufficient, as is a common core of salient facts coupled with

12 disparate legal remedies within the class.” Hanlon Corp., 150

13 F.3d at 1019. “[A] proposed class can consist of members with

14 widely differing experiences as they relate to a common case but

15 seek a common remedy for a common policy of discrimination.”

16 Parra v. Bashas’, Inc., 536 F.3d 975, 978 (9th Cir. 2008);

17 Communities for Equity, 192 F.R.D. at 572 (“In cases involving

18 the question of whether a defendant has acted through an illegal

19 policy or procedure, commonality is readily shown because the

20 common question becomes whether the defendant in fact acted

21 through the illegal policy or procedure.”).

22

In this case, the central question is “whether UCD

23 discriminates against women in its varsity athletics program by

24 failing to provide equal athletic opportunities in violation of

25 Title IX.” (Pl.’s Mot. for Class Certification, filed Aug. 14,

26 2008, at 9.) Questions of law and fact that are common to the

27 class may include, among others: (1) whether female varsity

28 athletic opportunities are disproportionately few in relation to

11

1 the level of female enrollment at UCD; (2) whether women’s

2 varsity athletic opportunities are disproportionately few in

3 relation to the level of men’s athletic varsity opportunities;

4 (3) whether UCD has failed to expand female varsity opportunities

5 for students at a rate and in a manner that is responsive to

6 developing interests on campus; (4) whether defendant has

7 violated Title IX in its allocation of varsity sports

8 opportunities; and (5) whether plaintiffs are entitled to

9 injunctive relief requiring defendant to create more varsity

10 opportunities for female students at UCD. (Id. at 10.); see

11 Communities for Equity, 192 F.R.D. at 572 (holding that

12 commonality was established where the overarching question was

13 whether the defendant violated Title IX).5 Accordingly, the

14 commonality requirement is satisfied.

15 C. Rule 23(a)(3): Typicality

16

Next, Rule 23(a) requires that the “claims or defenses of

17 the class representative must be typical of the claims or

18 defenses of the class.” Fed. R. Civ. P. 23(a)(3). “The test of

19 typicality ‘is whether other members have the same or similar

20 injury, whether the action is based on conduct which is not

21 unique to the named plaintiffs, and whether other class members

22 have been injured by the same course of conduct.’” Hanon v.

23 Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992) (quoting

24 Schwartz v. Harp, 108 F.R.D. 279, 282 (C.D. Cal. 1985)). “The

25

26

5

Defendant does not specifically argue that the

commonality requirement is not met, but rather, argues that the

27 asserted conflict among the class precludes certification. The

court notes that these arguments are better addressed in the

28 discussion of the typicality and/or adequacy of representation

inquiries.

12

1 purpose of the typicality requirement is to assure that the

2 interest of the named representative aligns with the interests of

3 the class.” Id. While this requirement seemingly merges with

4 the commonality requirement, the inquiry under typicality focuses

5 on potential conflict6 between the interests of the class

6 representatives and the interests of the absent class members

7 that would preclude certification. See Falcon, 457 U.S. at 157

8 n.3 (noting that typicality tends to merge with both commonality

9 and adequacy of representation because it serves as a guidepost

10 for determining “whether maintenance of a class action is

11 economical and whether the named plaintiff’s claim and the class

12 claims are so interrelated that the interests of the class

13 members will be fairly and adequately represented in their

14 absence”).

15

“[C]lass certification is inappropriate where a putative

16 class representative is subject to unique defenses which threaten

17 to become the focus of the litigation.” Hanon, 976 F.2d at 508

18 (quoting Gary Plastic Packaging Corp. v. Merrill Lynch, Pierce,

19 Fenner & Smith, Inc., 903 F.2d 176, 180 (2d Cir. 1990)). The

20 unique defense inquiry goes to the existence of a defense, not to

21 its validity; the party opposing certification must show some

22 degree of likelihood that the unique defense will play a

23 significant role at trial. 5 Moore’s Federal Practice §

24 23.24[6][a] (3d Ed. Supp. 2008). However, a defense that has no

25

26

6

The inquiry into potential also implicates the

requirement under Rule 23(a)(4) and under constitutional due

27 process standards that “absent class members must be afforded

adequate representation before entry of a judgment which binds

28 them.” Hanlon, 150 F.3d at 1020 (citing Hansberry v. Lee, 311

U.S. 32, 42-43 (1940)).

13

1 merit will not preclude certification. Id.; see Hanon, 976 F.2d

2 at 509 (noting that the court is “at liberty to consider evidence

3 which goes to the requirements of Rule 23 even though the

4 evidence may also relate to the underlying merits of the case”).

5

As set forth above, plaintiffs have demonstrated that the

6 claims of the named plaintiffs as well as the proposed class

7 arise out of the systemic denial of varsity athletic

8 opportunities and accompanying benefits due to defendant’s

9 alleged discriminatory policies. All plaintiffs’ claims are

10 based upon the common legal issues of whether defendant’s system-

11 wide programs, policies, and practices violate Title IX. All

12 plaintiffs’ injuries arise from the denial of equal athletic

13 participation opportunities to women students at UCD.

14

Defendant contends that plaintiffs Brust and Bulala’s claims

15 are not typical of the class because they are subject to the

16 unique defense of mootness. Defendant asserts that because field

17 hockey is in the process of being established as a varsity sport

18 at UCD, claims relating to field hockey are no longer actionable.

19

While the court does not reach a conclusion with respect to

20 the merits of defendant’s asserted defense, it holds that the

21 relative strength of the argument demonstrates that the mootness

22 defense will not play a significant role at trial such that it

23 precludes certification. See Riordan v. Smith Barney, 113 F.R.D.

24 60, 63 (N.D. Cal. 1986) (“[I]t is only when a unique defense will

25 consume the merits of a case that a class should not be

26 certified.”). First, defendant’s argument relies on a

27 mischaracterization of plaintiffs’ claims. Brust and Bulala’s

28 claim is not based upon UCD’s failure to add a field hockey team,

14

1 but rather, the alleged failure to provide equal athletic

2 opportunities to interested female athletes. The lack of a

3 varsity field hockey team when there was sufficient interest is

4 only one alleged result of this systemic discrimination.

5 Moreover, plaintiffs’ requested injunctive relief is that UCD

6 increase varsity athletic participation opportunities for female

7 students at UCD, not the addition of a field hockey team or any

8 particular varsity athletic team. Second, at present, there is

9 no active varsity field hockey team at UCD. Finally, issues

10 relating to voluntary cessation and broader public goals raise

11 serious questions as to the applicability of the defense. Under

12 these circumstances, the court does not conclude that the

13 mootness defense defeats typicality.

14

Defendant also contends that there is a conflict between

15 named plaintiffs’ interests in establishing varsity teams of

16 their liking and the interest in absent members of the class who

17 would prefer the establishment of other varsity teams. Again,

18 defendant’s argument relies on the mischaracterization that named

19 plaintiffs seek the establishment of particular varsity teams at

20 UCD as opposed to an increase in varsity athletic opportunities

21 generally. Further, “[t]o the extent that the underlying issue

22 in the case is one of unequal treatment and discrimination, the

23 matter of whether to sanction a particular sport appears to be

24 one relating to relief, rather than liability.” Communities for

25 Equity, 192 F.R.D. at 574.

26

The court is mindful that a conflict could arise at the

27 remedy stage, if any, of the litigation due to the limited

28 availability of resources and the choice between what teams may

15

1 be selected for varsity status.7 Boucher v. Syracuse Univ., 164

2 F.3d 113, 199 (2d Cir. 1998). This conflict may be resolved by

3 the creation of subclasses. Id. However, because the liability

4 determination in this case is particularly well-suited to class

5 treatment, the court believes that the appropriate course is “to

6 defer consideration of any subclasses to the relief stage, if

7 any, of this litigation.” Communities for Equity, 192 F.R.D. at

8 574 (citing H. Newberg and A. Conte, 1 Newberg on Class Actions,

9 § 3.25 (3d ed. 1992) (“Potential conflicts relating to relief

10 issues which would arise only if the plaintiffs succeed on common

11 claims of liability on behalf of the class will not bar a finding

12 of adequacy and may be resolved, when the need arises, by the

13 formation of subclasses at the relief stage.”).

14

Accordingly, the typicality requirement is satisfied.

15 D. Rule 23(a)(4): Adequacy of Representation

16

The final prerequisite under Rule 23(a) is that the person

17 representing the class must be able “fairly and adequately to

18 protect the interests” of all members in the class. Fed. R. Civ.

19 P. 23(a)(4). This element requires: “(1) that the proposed

20 representative [p]laintiffs do not have conflicts of interest

21 with the proposed class, and (2) that [p]laintiffs are

22 represented by qualified and competent counsel.” Dukes v. Wal-

23 Mart, Inc., 509 F.3d 1168, 1185 (9th Cir. 2007).

24

Defendant’s objections to the adequacy of representation are

25 based primarily upon the same alleged conflicts discussed under

26

27

7

However, the court notes that if plaintiffs prevail,

28 relief is not necessarily based upon an injunction requiring the

establishment of specific varsity teams for women.

16

1 the typicality requirement.8 As set forth above, the court finds

2 that there is no conflict of interest arising out of the proposed

3 addition of field hockey as a varsity sport and that any

4 potential conflict with respect to the remedies may be cured at a

5 later stage in the litigation through appropriate subclasses.

6

Defendant also argues that there is inherent conflict in the

7 class because some women are not interested in playing varsity

8 sports and do not want to be a member of the class.

9 Specifically, defendant references the declarations of two female

10 UCD students who participate in club sports or intramural sports,

11 have no desire to compete at the intercollegiate level and do not

12 want to be parties to the lawsuit. (Decl. of Rebecca Kwong,

13 Def.’s Ex. Z; Decl. of Amy Cole, Def.’s Ex. AA.) As an initial

14 matter, the proposed class purports only to represent those women

15 who seek to participate in and/or who are deterred from

16 participating in intercollegiate athletics at UCD. To the extent

17 that some female students do not seek to participate in

18 intercollegiate athletics, they are not part of the proposed

19 class. Further, “[i]t is not ‘fatal if some members of the class

20 prefer not to have violations of their rights remedied.’” Lanner

21 v. Wimmer, 662 F.2d 1349, 1357 (10th Cir. 1981); see Int’l

22 Molders’ & Allied Workers’ Local Union No. 164 v. Nelson, 102

23 F.R.D. 457, 464 (N.D. Cal. 1983) (holding that some class

24 members’ belief that the defendants’ conduct was not

25 objectionable did not defeat class certification; see also 5

26 Moore’s Federal Practice § 23.25[2][6][iii] (3d Ed. Supp. 2008)

27

28

8

Defendant addressed commonality, typicality, and

adequacy of representation simultaneously in its opposition.

17

1 (“[A] court will not refuse to certify a class solely because

2 some of the class members prefer to leave their rights

3 unremedied.”); H. Newberg and A. Conte, 1 Newberg on Class

4 Actions, § 3:30 (4th ed. 2008) (“[T]he class member who wishes to

5 remain a victim of unlawful conduct does not have a legally

6 cognizable conflict with the class representative.”).9

7

With respect to the appointment of class counsel, defendant

8 does not contest the qualifications of the Sturdevant Law Firm

9 and Equal Rights Advocates to serve as class counsel. (Def.’s

10 Opp’n to Pls.’ Mot. for Class Certification, filed Sept. 10,

11 2008, at 19.) However, defendant challenges the appointment of

12 Kristen Galles of Equity Legal on the basis that there is no need

13 to have three law firms assigned as class counsel and it will

14 contribute to the needless inflation of attorneys’ fees. The

15 court disagrees. Ms. Galles has significant Title IX class

16 counsel experience. (Pl.’s Ex. D.) To the extent that

17 plaintiffs’ attorneys fees become an issue for defendant in this

18 litigation, the court can determine whether duplicative work has

19 been performed by counsel.

20

Accordingly, representation is adequate.

21 E. Rule 23(b)(2): Injunctive or Declaratory Relief

22

Under Rule 23(b)(2), class certification may be appropriate

23 where a defendant acted or refused to act in a manner applicable

24 to the class generally, rendering injunctive relief or

25 declaratory relief appropriate to the class as a whole. Fed. R.

26

27

9

Moreover, “the interests of those class members who do

not consider themselves adversely affected will be adequately

28 represented by defendant.” Communities for Equity, 192 F.R.D. at

574.

18

1 Civ. P. 23(b)(2); see Molski v. Gleich, 318 F.3d 937, 950 (9th

2 Cir. 2003). Rule 23(b)(2) generally does not extend to cases in

3 which the appropriate final relief relates primarily to money

4 damages. See Arnold v. United Artists Theatre Circuit, Inc., 158

5 F.R.D. 439, 450-51 (N.D. Cal. 1994). However, “[c]lass actions

6 certified under Rule 23(b)(2) are not limited to actions

7 requesting injunctive and declaratory relief, but may include

8 cases that also seek monetary damages.” Probe v. State Teachers’

9 Retirement Sys., 780 F.2d 776, 780 (9th Cir. 1986).

10

In this case, plaintiffs allege that defendant UCD acted in

11 a manner applicable to the class generally by failing to offer

12 equal intercollegiate athletic opportunities to women students at

13 UCD. Plaintiffs predominately seek declaratory and injunctive

14 relief requiring UCD to come into compliance with Title IX; such

15 relief would apply to and benefit the class as a whole.

16 Accordingly, certification under Rule 23(b)(2) on the issues of

17 liability, declaratory relief and injunctive relief is

18 appropriate.

19

CONCLUSION

20

For the foregoing reasons, plaintiffs’ motion for class

21 certification is GRANTED. The court certifies the following

22 class:

23

All present, prospective, and future women students at

the University of California at Davis who seek to

24

participate in and/or who are deterred from

participating in intercollegiate athletics at the

25

University of California at Davis.

26 The court appoints Kelsey Brust, Laura Ludwig, and Jessica Bulala

27 as class representatives. The court appoints Equal Rights

28 /////

19

1 Advocates, The Sturdevant Law Firm, and Equity Legal as class

2 counsel.

3

IT IS SO ORDERED.

4 DATED: October 23, 2008 5

6

FRANK C. DAMRELL, JR.

7

UNITED STATES DISTRICT JUDGE

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 Case 2:07-cv-01488-FCD-EFB Document 97 Filed 06/22/09 Page 1 of 2

1 James C. Sturdevant, State Bar No. 94551

(jsturdevant@sturdevantlaw.com)

2

Monique Olivier, State Bar No. 190385 (molivier@sturdevantlaw.com)

Whitney Huston, State Bar No. 234863

3 (whuston@sturdevantlaw.com)

THE STURDEVANT LAW FIRM

4

A Professional Corporation 354 Pine Street, Fourth Floor

5

San Francisco, CA 94104 Telephone: (415) 477-2410

Facsimile: (415) 477-2420

6

Debra Smith, State Bar No. 147863

7

(dsmith@equalrights.org) Noreen Farrell, State Bar No. 191600

(nfarrell@equalrights.org)

8 Lisa Leebove, State Bar No. 186705

(lleebove@equalrights.org)

9

EQUAL RIGHTS ADVOCATES 1663 Mission Street, Suite 250

10

San Francisco, CA 94103 Telephone: (415) 621-0672

Facsimile: (415) 621-6744

11

Kristen Galles, State Bar No. 148740

12

(kgalles@comcast.net) EQUITY LEGAL

10 Rosecrest Avenue

13 Alexandria, VA 22301

Telephone: (703) 683-4491

14 Attorneys for Plaintiffs

15 PORTER SCOTT

A Professional Corporation

16

Nancy J. Sheehan, State Bar No. 109419 (nsheehan@pswdlaw.com)

17

350 University Avenue, Suite 200 Sacramento, California 95825

Telephone: (916) 929-1481

18 Facsimile: (916) 927-3706

19 Attorneys for Defendant

20

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

21 KELSEY BRUST, et al.,

CASE NO. 2:07-CV-01488-FCD-EFB

22 23 vs.

Plaintiffs,

24

REGENTS OF THE UNIVERSITY OF CALIFORNIA,

CLASS ACTION
JOINT NOTICE OF SETTLEMENT AND [proposed] ORDER RE BRIEFING SCHEDULE FOR PRELIMINARY APPROVAL

25

Defendant.

26

Complaint filed: July 24, 2007

Trial Date:

October 27, 2009

Honorable Frank C. Damrell, Jr.

27

28

JOINT NOTICE OF SETTLEMENT AND [PROPOSED] ORDER RE BRIEFING SCHEDULE FOR PRELIMINARY APPROVAL CASE NO. CIV S-03-2591 FCD EFB

Case 2:07-cv-01488-FCD-EFB Document 97 Filed 06/22/09 Page 2 of 2

1

Pursuant to Eastern District Local Rules 16-160 and 16-272, the parties, by and through their

2 counsel of record, hereby notify the Court that all claims against all parties in this action have been

3 resolved. The parties are preparing joint motion papers for preliminary approval, which includes notice

4 to the class of all settlement terms. The parties do not anticipate there being any opposition to this

5 motion. As such, pursuant to Local Rule 16-160(b), the parties propose the following briefing schedule

6 and hearing date for preliminary approval: (1) Joint Motion for Preliminary Approval Papers to be filed

7 no later than June 30, 2009; and (2) hearing on the Joint Motion for Preliminary Approval on August 7,

8 2009.

9

This notice is being filed with the consent of all parties.

10 DATED: June 22 2009 A
11
12
13

PORTER SCOTT Professional Corporation
/s/ Nancy J. Sheehan NANCY J. SHEEHAN Attorneys for Defendant

14 DATED: June 22 2009 A
15

16

MONIQUE

17

THE STURDEVANT LAW FIRM Professional Corporation
/s/ Monique Olivier OLIVIER
Attorneys for Plaintiffs

18 DATED: June 22 2009
19
20
21 IT IS SO ORDERED 22
DATED: ___________________ 23

EQUAL RIGHTS ADVOCATES
/s/ Noreen Farrell NOREEN FARRELL Attorneys for Plaintiffs

24

FRANK C. DAMRELL, JR.

UNITED STATES DISTRICT JUDGE

25

26

27

Z:\428 - Brust v UC Regents\Pleadings\Joint Notice of Settlement.doc

28 2
JOINT NOTICE OF SETTLEMENT AND [PROPOSED] ORDER RE BRIEFING SCHEDULE FOR PRELIMINARY APPROVAL CASE NO. CIV S-03-2591 FCD EFB

 
 1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10 KELSEY BRUST, et al.,

CASE NO. 2:07-CV-01488-FCD-EFB

11 vs.
12

Plaintiffs,

REGENTS OF THE UNIVERSITY OF 13 CALIFORNIA,

14

Defendant.

15

CLASS ACTION
ORDER: (1) PRELIMINARILY APPROVING THE STIPULATED JUDGMENT, (2) AUTHORIZING DISTRIBUTION OF NOTICE OF SETTLEMENT, AND (3) SETTING A SCHEDULE FOR THE FINAL APPROVAL PROCESS

16

The parties have reached a proposed resolution of this case, which is described in the Stipulated

17 Judgment. The Stipulated Judgment was submitted to this Court for its consideration, together with a

18 proposed notice to the class regarding the settlement, and a schedule for final approval of the Stipulated

19 Judgment. The Court has considered the submissions by and presentations of counsel regarding the

20 proposed Stipulated Judgment in light of the requirements of Federal Rule of Civil Procedure 23, which

21 provides procedural guidance on the conduct of the settlement approval process in class actions.

22

The Court has carefully reviewed all the documents filed by the parties in this action in support

23 of the Stipulated Judgment, as well as other pleadings and documents filed in this action, including the

24 briefs and evidence submitted in connection with the motion for class certification. For the reasons set

25 forth more fully below, the Court now GRANTS preliminary approval of the Stipulated Judgment.

26

27

28

ORDER FOR PRELIMINARY APPROVAL

CASE NO. CIV S-07-1488 FCD EFB

1

THE COURT FINDS AND ORDERS AS FOLLOWS:

2

1. All terms and phrases used hereafter in this Preliminary Approval Order shall have the

3 same meanings ascribed to them in the Stipulated Judgment, a copy of which is attached hereto as

4 Exhibit A.

5

2. This Court has jurisdiction over the subject matter of the litigation and over all parties to

6 this litigation.

7

A. Preliminary Approval of Stipulated Judgment.

8

1. The Court has reviewed and considered the Stipulated Judgment attached as Exhibit A to

9 the Declaration of Monique Olivier, together with all the exhibits thereto. The Court has also read and

10 considered the Declarations of Monique Olivier, Noreen Farrell, Nancy Sheehan, and Dina Lassow in

11 support of preliminary approval. The Court finds that the Stipulated Judgment is the result of substantial
12 arm’s-length negotiations between the parties. The significant and comprehensive relief obtained, the
13 thorough mediation process, and the involvement of mediator Michael Dickstein in the settlement
14 process confirm that the negotiations were not collusive. The proposed Stipulated Judgment provides a
15 substantial increase in the opportunities available for women athletes, maximizes the chances of adding
16 women’s teams, provides funds to support the development of UCD female students’ athletic abilities,
17 and establishes monitoring of the process for the addition of teams and varsity squad sizes. For all these
18 reasons, the Court finds that the settlement is fair, reasonable and adequate, and falls within the range of
19 possible approval.
20 2. The Court preliminarily finds that the monetary relief of $8,000 to each of the
21 representative Plaintiffs is fair, reasonable, and adequate, and falls within the range of possible approval.
22 3. The Court preliminarily finds that the attorneys’ fees and costs request of $429,000 in
23 fees and $31,000 in costs (a combined total of $460,000) is reasonable based on a variety of factors,
24 including: the relief obtained for the Class through the settlement, the fact that the amount of fees and
25 costs sought is significantly below Class Counsel’s lodestar, the fact that Defendant does not contest the
26 amount sought, and the fact that the parties negotiated all of the settlement terms pertaining to class
27 relief prior to discussions concerning the payment of attorneys’ fees and costs.
28

ORDER FOR PRELIMINARY APPROVAL

1
CASE NO. CIV S-07-1488 FCD EFB

1

4. The Court’s review of the materials listed above and its familiarity with the case lead it to

2 conclude that the proposed Stipulated Judgment is within the range of possible settlement approval, such

3 that preliminary approval of the Stipulated Judgment is warranted. For these reasons, the Court finds

4 that the terms of the Settlement Agreement are sufficiently “fair, adequate, and reasonable” viewed as a

5 whole, such that preliminary approval of the settlement is warranted. See Officers for Justice v. Civil

6 Serv. Comm’n of San Francisco, 688 F.2d 615, 625 (9th Cir.1982) (“universally applied standard” is

7 whether the settlement is “fundamentally fair, adequate, and reasonable”).

8

B. Approval of Form and Manner of Distributing Class Notice.

9

1. This Court has discretion to determine what notice, if any, should be given. Fed. R. Civ. P.

10 23(b)(2); Molski v. Gleich, 318 F.3d 937, 947-48 (9th Cir. 2003). The Court finds that the Notice of

11 Proposed Settlement of Class Action (“Class Notice”), a copy of which is attached hereto as Exhibit B,
12 clearly and concisely informs class members of all the relevant aspects of the litigation, including the
13 binding effect of this Court’s decision to approve the settlement after the fairness hearing, the provision
14 regarding payment of attorneys’ fees and costs, and the right to and procedure for objecting to the
15 Stipulated Judgment. The proposed plan for distributing the Class Notice, as described in the Stipulated
16 Judgment, is a reasonable method calculated to reach all members of the Class who would be bound by
17 the Stipulated Judgment. The Court finds and concludes that the proposed plan for distributing the Class 18
Notice will provide the best notice practicable, satisfies the notice requirements of Rule 23(e), and 19
satisfies all other legal and due process requirements. 20
2. The manner of distributing the Class Notice, as described in the Stipulated Judgment, is 21
approved and ordered. 22
C. Procedures for Final Approval 23
1. The Court hereby schedules a Fairness Hearing to determine whether the proposed 24
settlement of the action on the terms and conditions provided in the Stipulated Judgment should be given 25
final approval by the Court and whether the Stipulated Judgment substantially in the form attached 26
hereto as Exhibit A. The Court may adjourn or continue the Fairness Hearing without further notice to 27
the persons in the Class. The Fairness Hearing is scheduled for 10:00 a.m. on October 16, 2009 at the 28

ORDER FOR PRELIMINARY APPROVAL

2
CASE NO. CIV S-07-1488 FCD EFB

1 United States District Court for the Eastern District of California, 501 “I” Street, Courtroom 2,

2 Sacramento, CA 95814.

3

2. Any Class Member who wishes to object to the fairness, reasonableness, or adequacy of

4 this proposed settlement, must submit written objections to the Court and Plaintiffs’ Counsel,

5 postmarked no later than September 28, 2009. Class Members may so object either on their own or

6 through an attorney hired at their own expense.

7

3. Any member of the class who does not timely file and serve such a written objection shall

8 not be permitted to raise such objection, except for good cause shown, and any member of the class who

9 fails to object in the manner prescribed herein shall be deemed to have waived, and shall be foreclosed

10 from raising, any such objection.

11

4. No later than October 9, 2009, the parties shall file a joint Motion for Final Approval of

12 the Settlement.

13

5. No later than October 9, 2009, Class Counsel shall file with this Court their petition for

14 an award of attorneys’ fees and reimbursement of expenses and include therewith a summary of hours

15 and costs expended. The motion for an award of attorneys’ fees and costs shall be heard at the time of

16 the fairness hearing on October 16, 2009.

17

6. If the Court grants final approval of the settlement after the Fairness Hearing, it shall

18 enter the Stipulated Judgment as an order and judgment of this Court. Pursuant to the terms of the

19 Stipulated Judgment, the Court shall retain jurisdiction over this matter through the 2019/2020 academic

20 year.

21 IT IS SO ORDERED
22

23 DATED: August 11, 2009
24
25

_______________________________________ FRANK C. DAMRELL, JR. UNITED STATES DISTRICT JUDGE

26

27

28

ORDER FOR PRELIMINARY APPROVAL

3
CASE NO. CIV S-07-1488 FCD EFB

EXHIBIT A

1 James C. Sturdevant, State Bar No. 94551

(jsturdevant@sturdevantlaw.com)

2

Monique Olivier, State Bar No. 190385 (molivier@sturdevantlaw.com)

Whitney Huston, State Bar No. 234863

3 (whuston@sturdevantlaw.com)

THE STURDEVANT LAW FIRM

4

A Professional Corporation 354 Pine Street, Fourth Floor

5

San Francisco, CA 94104 Telephone: (415) 477-2410

Facsimile: (415) 477-2420

6

Debra Smith, State Bar No. 147863

7

(dsmith@equalrights.org) Noreen Farrell, State Bar No. 191600

(nfarrell@equalrights.org)

8 Lisa Leebove, State Bar No. 186705

(lleebove@equalrights.org)

9

EQUAL RIGHTS ADVOCATES 1663 Mission Street, Suite 250

10

San Francisco, CA 94103 Telephone: (415) 621-0672

Facsimile: (415) 621-6744

11

Kristen Galles, State Bar No. 148740

12

(kgalles@comcast.net) EQUITY LEGAL

10 Rosecrest Avenue

13 Alexandria, VA 22301

Telephone: (703) 683-4491

14 Attorneys for Plaintiffs

15 PORTER SCOTT

A Professional Corporation

16

Nancy J. Sheehan, State Bar No. 109419 (nsheehan@porterscott.com)

17

350 University Avenue, Suite 200 Sacramento, California 95825

Telephone: (916) 929-1481

18 Facsimile: (916) 927-3706

19 Attorneys for Defendant

20

UNITED STATES DISTRICT COURT

21

EASTERN DISTRICT OF CALIFORNIA

22 KELSEY BRUST, et al.,

CASE NO. 2:07-CV-01488-FCD-EFB

23 vs.

Plaintiffs,

24 REGENTS OF THE UNIVERSITY OF 25 CALIFORNIA,

CLASS ACTION STIPULATED JUDGMENT AND ORDER

26

Defendant.

27

28

STIPULATED JUDGMENT AND ORDER CASE NO. CIV S-03-2591 FCD EFB

1

This Stipulated Judgment is entered into by and between plaintiffs Kelsey Brust (“Brust”),

2 Jessica Bulala (“Bulala”), and Laura Ludwig (“Ludwig”) (collectively, “Plaintiffs”), individually and

3 as representatives of the Class (as defined below), on the one hand, and The Regents of the University of

4 California (“Regents” or “Defendant”), on the other, for conduct relating to the University of California at

5 Davis (“UCD”).

6 I. INTRODUCTION

7

A. On July 24, 2007, Plaintiffs filed a proposed class action complaint against Defendant

8 Regents, and individual defendants UCD Chancellor Larry Vanderhoef and UCD Athletic Director Greg

9 Warzecka (collectively “Defendants”) in the United States District Court for the Eastern District of

10 California, alleging violations of: (1) the Equal Athletic Participation Opportunity requirements of Title

11 IX of the Education Amendments of 1972 (20 U.S.C. § 1681 et seq.) (“Title IX”); (2) the Fourteenth

12 Amendment to the United States Constitution, as enforced through 42 U.S.C. § 1983 (“§ 1983”); (3) the

13 Unruh Civil Rights Act of California state law (Cal. Civ. Code § 51 et seq.); and (4) California public

14 policy (“the Action”).

15

B. On October 26, 2007, Defendants moved to dismiss the Action pursuant to Federal Rules

16 of Civil Procedure, rule 12(b)(6). On December 12, 2007, the Court granted Defendants’ motion in part,

17 dismissing Plaintiffs’ § 1983 claim and their state law claims, and dismissing individual defendants

18 Vanderhoef and Warzecka.

19

C. On August 14, 2008, Plaintiffs filed a Motion for Class Certification. On October 24,

20 2008, the Court entered an Order certifying the following class (“the Class”):

21

All present, prospective, and future women students at the University of California at Davis who

seek to participate in and/or who are deterred from participating in intercollegiate athletics at the

22

University of California at Davis.

23

Plaintiffs were appointed class representatives and Plaintiffs’ Counsel was appointed as Class

24 Counsel.

25

D. The lawsuit has been vigorously prosecuted and defended and has included significant

26 discovery and motion practice.

27

E. On January 30th, and again on February 25th 2009, the Parties held two mediation

28 1
STIPULATED JUDGMENT AND ORDER CASE NO. CIV S-03-2591 FCD EFB

1 sessions conducted by Michael Dickstein of Dickstein Dispute Resolution. Following these two

2 mediations sessions, the parties had numerous additional conversations and negotiations regarding

3 settlement, which were also conducted by Michael Dickstein. At the conclusion of these sessions and

4 conversations, the Parties agreed to settle this Action.

5

F. Plaintiffs and Plaintiffs’ Counsel (as defined below) have agreed to settle this Action,

6 pursuant to the provisions of this Stipulated Judgment, considering, among other things: (1) the

7 substantial benefits available to Plaintiffs and the Class under the terms of this Stipulated Judgment;

8 (2) the attendant risks and uncertainties of litigation, especially in complex litigation such as this Action

9 as well as the difficulties and delays inherent in such litigation; and (3) the desirability of consummating

10 this Stipulated Judgment promptly to provide effective relief to the Class.

11

G. The fact that the Regents has entered into this Stipulated Judgment is not an admission of

12 liability or an admission that it is not or has not been in compliance with Title IX. The terms of the

13 settlement apply only to the University of California at Davis and should not be used as precedent for

14 Defendant’s other schools or campuses.

15

H. This matter involves contested issues of fact and liability and there has been no

16 adjudication by the Court of the claims asserted, nor finding of fact made. The Stipulated Judgment is

17 entered into solely for the purpose of allowing the Court to maintain jurisdiction over the case for the

18 time periods specified herein.

19

I. The Parties make the promises contained in this Stipulated Judgment for good and

20 valuable consideration, the adequacy of which is hereby acknowledged.

21 II. DEFINITIONS

22

A. As used in this Stipulated Judgment and the attached Exhibits, which are an integral part

23 of the Stipulated Judgment and are incorporated in their entirety by reference, the following terms have

24 the meanings specified below:

25

1. “Action” means Kelsey Brust, et al. v. Regents of the University of California, et

26 al., Case No. 2:07-CV-01488-FCD-EFB (E.D. Cal.).

27

2. “Class” means: All present, prospective, and future women students at the

28 2
STIPULATED JUDGMENT AND ORDER CASE NO. CIV S-03-2591 FCD EFB

1 University of California at Davis who seek to participate in and/or who are deterred from participating in

2 intercollegiate athletics at the University of California at Davis during the Compliance Period.

3

3. “Class Counsel” or “Plaintiffs’ Counsel” means Equal Rights Advocates, The

4 Sturdevant Law Firm, and Equity Legal.

5

4. “Class Member” means a person who falls within the Class (as defined above).

6

5. “Notice” means the notice provided to the Class, the proposed form of which is

7 attached hereto as Exhibit A.

8

6. “Compliance Period” means the period from the Effective Date of this Stipulated

9 Judgment until the termination of this Stipulated Judgment at the end of the 2019-2020 academic year.

10

7. “Defendant” means The Regents of the University of California (“Regents” or

11 “Defendant”).

12

8. “Defendant’s Counsel” means Porter Scott, PC.

13

9. “Enrollment Numbers” means the total number of full-time undergraduate

14 students enrolled at the University of California at Davis, broken down by gender.

15

10. “Effective Date” means the date when each and all of the following conditions

16 have occurred:

17

a. This Stipulated Judgment has been signed by Plaintiffs, Defendant,

18 Plaintiffs’ Counsel, Defendant’s Counsel;

19

b. The Court has approved notice to the Class and notice has been issued;

20

c. The Court has both preliminarily and finally approved the Stipulated

21 Judgment;

22

d. The Court has entered the Stipulated Judgment and Order.

23

11. “Equity in Athletics Disclosure Act Report (‘EADA Report’)” means the

24 annual report submitted by UCD to the U.S. Department of Education pursuant to its obligations under

25 the Equity in Athletics Disclosure Act of 1994, 20 U.S.C. § 1092. The EADA Report includes data on

26 enrollment, varsity athletic participation, staffing, and revenues and expenses, broken down by gender.

27

12. “Female Participation Differential” means: The difference between the

28 3
STIPULATED JUDGMENT AND ORDER CASE NO. CIV S-03-2591 FCD EFB

1 percentage of full-time female undergraduate enrollment and the percentage of female intercollegiate

2 participation opportunities, as based on enrollment and participation numbers set forth in the EADA

3 Report issued in the calendar year in question.

4

13. “NCAA Division I average squad size” means the average number of

5 participants on a Division I level squad, broken down by gender, as determined by the statistical

6 information compiled by the NCAA regarding participation in intercollegiate athletics at its member

7 institutions and reported yearly.

8

14. “Parties” means and refers to Plaintiffs and Defendant.

9

15. “Selection Process” means and refers to the process employed by UCD, upon

10 determination that UCD will add a varsity intercollegiate athletic team, to determine which varsity team

11 to add. The process includes, but is not limited to: the creation of a Sports Selection Advisory

12 Committee, the distribution and publication of UCD’s intent to add a varsity team and the criteria

13 relating to the addition of a varsity team, the review of applications by the Sports Selection Advisory

14 Committee, and the review of the recommendation of the Sports Selection Advisory Committee by the

15 Title IX Advisory Committee.

16

16. “Title IX Compliance Officer” means an employee of UCD who is qualified and

17 appointed to serve as the individual responsible for ensuring compliance with Equal Athletic

18 Participation Opportunity requirements of Title IX of the Education Amendments of 1972, 20 U.S.C. §

19 1681 et seq. (“Title IX”), which prohibits sex discrimination in educational institutions receiving federal

20 financial assistance.

21

17. “Title IX Compliance Report” means the annual report prepared by the Chair of

22 the Title IX Advisory Committee and the annual report prepared by the Title IX Compliance Officer

23 regarding the UCD’s compliance with Title IX in regard to athletics.

24 III. SETTLEMENT RELIEF

25

A. Equitable Relief

26

The Parties hereby agree that, conditioned upon entry of the Stipulated Judgment and

27 Order by the District Court, Defendant shall do the following:

28 4
STIPULATED JUDGMENT AND ORDER CASE NO. CIV S-03-2591 FCD EFB

1

1. Addition of Women’s Varsity Teams

2

a. UCD shall continue implementation of the addition of a women’s varsity

3

field hockey team to commence competition in the 2009-2010 academic

4

year. UCD’s support of women’s varsity field hockey shall include:

5

i

UCD shall provide sufficient funding to the women’s varsity field

6

hockey team to ensure recruitment, competition, development, and

7

with the understanding that scholarships are phased in under

8

standard UCD practice with respect to all new varsity teams. UCD

9

shall ensure equitable treatment of the team as required by law.

10

ii In May, 2009 UCD provided campus-wide notice of open tryouts

11

for the women’s field hockey team (including publication in the

12

campus newspaper, posting at club sports office and distribution of

13

notice to field hockey club team). As a result of these tryouts and

14

recruitment, a roster for the women’s field hockey team has been

15

created and the team is scheduled to start competition in August,

16

2009.

17

iii UCD shall maintain the women’s field hockey club team so long

18

as there is continued sufficient student interest.

19

iv This Stipulated Judgment does not give the field hockey club team

20

precedential preferential status in regard to funding or other

21

aspects over other club sports.

22

b. Any varsity team added pursuant to, or throughout the duration of, this Stipulated

23

Judgment shall receive UCD support set forth under Section III.A.1.a., specific to

24

the team added.

25

i

The Selection Process for the addition of any future varsity team

26

added pursuant to, or throughout the duration of, this Stipulated

27

Judgment shall include, at least, the following steps: UCD shall

28 5
STIPULATED JUDGMENT AND ORDER CASE NO. CIV S-03-2591 FCD EFB

1

notify female undergraduates, including but not limited to those

2

who are participating in club sports, of the opportunity to learn

3

about the Selection Process.

4

ii A student will remain on the Sports Selection Advisory

5

Committee.

6

iii UCD shall advise any individual or team seeking varsity status of

7

the existence of prior applications submitted by that team, if any,

8

for that sport and provide a copy of the prior applications upon

9

request.

10

iv UCD shall provide the criteria to applicants and will follow the

11

provided criteria in selecting a team.

12

v If UCD uses different criteria as the basis for the Selection Process

13

than it is currently using, at any time throughout the duration of

14

this Stipulated Judgment, it shall provide a copy of the changed

15

criteria to Plaintiffs’ Counsel.

16

2. Squad Sizes of Women’s Varsity Teams

17

a. If any UCD women’s varsity team has a squad size which is over 15% of

18

the NCAA Division I average squad size (as reported by the NCAA for

19

the previous year from the year in question), UCD’s Title IX Compliance

20

Officer shall investigate the size of that team and include his/her

21

conclusions from the investigation in the Title IX Compliance Report.

22

The Title IX Compliance Report should also include the roster sizes/actual

23

number for any team which is over 15% of the NCAA Division I average

24

squad size. The Title IX Compliance Officer may consider alternative

25

squad size models in his/her investigation.

26

b. The coaches of women’s teams at UCD will not be required to carry a

27

minimum number of participants on a team, aside from NCAA

28 6
STIPULATED JUDGMENT AND ORDER CASE NO. CIV S-03-2591 FCD EFB

1

requirements.

2

3. Female Participation Differential

3

a. The Female Participation Differential for the academic year 2009/2010

4

shall be no more than 3.5%, as reflected in the EADA Report issued in the

5

Fall of 2010.

6

b. The Female Participation Differential for the academic year 2010/2011

7

shall be no more than 2.5% as reflected in the EADA Report issued in the

8

Fall of 2011. If UCD does not meet this threshold, it shall decide whether

9

to add a new women’s varsity team to compete in academic year

10

2013/2014, or for the EADA Report issued in the Fall of 2012 to reflect

11

2.5% Female Participation Differential

12

c. The Female Participation Differential for the academic year 2013/2014

13

shall be no more than 1.5% as reflected in the EADA Report issued in the

14

Fall of 2014, as long as the percentage of women reflected in the

15

Enrollment Numbers on November 15, 2014 is less than 58%. If the

16

percentage of undergraduate women enrolled on November 15, 2014 is

17

58% or higher, then the Female Participation Differential shall be no more

18

than 2.0%. If UCD does not meet either threshold, it shall decide whether

19

to add a new women’s varsity team to compete by academic year 2016-

20

2017, or for the EADA Report issued in the Fall of 2015 to reflect a

21

Female Participation Differential of no more than 1.5% or 2%, depending

22

on which threshold, as described above, applies.

23

d. The Female Participation Differential for the academic year 2016/2017

24

shall be no more than 1.5% as reflected in the EADA Report issued in the

25

Fall of 2017. If UCD does not meet this threshold, it shall decide whether

26

to add a new women’s varsity team to compete by academic year

27

2019/2020 or for the EADA Report issued in the Fall of 2018 to reflect

28 7
STIPULATED JUDGMENT AND ORDER CASE NO. CIV S-03-2591 FCD EFB

1

1.5% Female Participation Differential.

2

e. Plaintiffs’ purpose in agreeing to the time frames set forth in this section is

3

to maximize the potential to add women’s participation opportunities. In

4

the event of any cuts to any men’s varsity teams, UCD will not reference

5

this lawsuit, Plaintiffs, or Plaintiffs’ Counsel in conjunction with the

6

elimination.

7

4. Fund to Support Athlete Development

8

a. As part of the settlement of the injunctive relief claim, Defendant shall pay

9

$110,000 as a fund (“Fund”) to a non-profit organization to be chosen by

10

Plaintiffs.

11

b. The $110,000 sum shall be paid in care of the chosen non-profit

12

organization within 30 days of the Effective Date.

13

c. The Fund shall be used solely to support club sports at UCD. Subject to

14

that limitation, Plaintiffs shall have the sole discretion to determine how

15

the Fund will be expended. Plaintiffs have exercised that discretion and

16

determined that the Fund will be used for the development of women

17

athletes through the UCD club sports programs.

18

d. Distribution of monies from the Fund shall be pursuant to a process

19

determined by Plaintiffs in conjunction with the non-profit organization.

20

e. To the extent there is any administrative fee or other expense associated

21

with the distribution of the Fund, such fee or expense shall be paid out of

22

the Fund.

23

f. Monies distributed from the Fund are in addition to any monies otherwise

24

allocated to the club sports teams by UCD and may not be used as a basis

25

for denying budget requests or otherwise be determinative of club sports

26

teams budgets.

27

5. Reporting Requirements

28 8
STIPULATED JUDGMENT AND ORDER CASE NO. CIV S-03-2591 FCD EFB

1

a. UCD shall report the following information to Plaintiffs’ Counsel on the

2

dates set forth below during the Compliance Period:

3

i

UCD’s Title IX Compliance Report annually, by September 1st,

4

through the 2019/2020 academic year.

5

ii UCD’s full-time Enrollment Numbers as of November 15, 2014,

6

by December 1, 2014.

7

iii UCD will inform Plaintiffs’ Counsel of which option it chooses

8

under Sections III.3.b., c. and d. above by January 30th of each year

9

specified by this agreement.

10

iv A copy of the notification to students that a women’s varsity team

11

selection process has begun and the announcement of the result of

12

the process in whatever form is used to publicly announce the

13

same information on campus, at the same time it is disseminated

14

on campus.

15

v

UCD’s EADA reports, annually by December 1st, through the

16

2019/2020 academic year.

17

B. Monetary Relief

18

1. Class Representatives

19

Within 30 days of the Effective Date, Defendant shall pay the sum of $8,000 to Plaintiff Brust,

20 $8,000 to Plaintiff Bulala, and $8,000 to Plaintiff Ludwig.

21

2. Attorneys’ Fees and Expenses

22

The Parties have agreed to settle Plaintiffs’ claim for reasonable attorneys’ fees and costs for the

23 sum of $460,000. Plaintiffs will seek approval of the fees and costs in this amount through a motion

24 filed with the Court. Defendant will not oppose the motion for attorneys’ fees and costs. Upon approval

25 by the Court, Defendant shall pay to Plaintiffs’ Counsel the sum of $460,000, representing costs and

26 attorneys’ fees incurred in the prosecution of this case. Except as specified herein, the Parties shall bear

27 their own costs and fees. The attorneys’ fees, costs, and expenses provided for under this Section shall

28 9
STIPULATED JUDGMENT AND ORDER CASE NO. CIV S-03-2591 FCD EFB

1 be paid in lieu of any applicable fee-shifting statute.

2

Attorneys’ fees and expenses will be paid by Defendant within 30 days of the Effective Date.

3 IV. CLASS NOTICE

4

UCD shall provide Notice of the proposed settlement to class members via a posting on the

5 portal for the e-mail system used by University students (“MyUCDavis”) and through publication in the

6 Davis Enterprise and Aggie newspapers. UCD shall be responsible for all costs relating to notice. The

7 Notice shall be substantially similar to the form attached hereto as Exhibit A. Notice will be effected

8 after the Court’s preliminary approval of this Stipulated Judgment at a time mutually agreed upon by the

9 Parties.

10 V. PRESS RELEASE

11

The Parties have issued a joint press release about the settlement, containing mutually agreeable

12 language.

13 V. RESOLUTION OF CLAIMS

14

A. Resolution of Claims by the Class

15

The terms set forth above resolve all of Plaintiffs’ class-based claims covered by this Stipulated

16 Judgment. This Stipulated Judgment resolves all class member claims for injunctive relief based upon

17 the same predicate facts asserted in the Complaint until expiration of the Court’s jurisdiction through the

18 end of the academic year 2019-2020. Class members do not release any individual claims for damages.

19 Such claims shall be dismissed from this case without prejudice.

20

B. Releases by the Class Representatives

21

Plaintiffs Brust, Bulala, and Ludwig shall be deemed to release and shall have released

22 Defendant, Chancellor Vanderhoef and Mr. Warzecka from any and all of Plaintiffs’ individual claims

23 for damages and for injunctive or declaratory relief that are the subject of, included within, and/or arise

24 from this lawsuit, including all claims, liabilities, obligations, demands, actions, and claims under Title

25 IX, 42 U.S.C. § 1983 (“§ 1983”), the Unruh Civil Rights Act, and California public policy. As a

26 condition of settlement Plaintiffs Brust, Bulala and Ludwig shall execute a full release in favor of

27 Defendant, Chancellor Vanderhoef and Mr. Warzecka for all claims referenced above.

28 10
STIPULATED JUDGMENT AND ORDER CASE NO. CIV S-03-2591 FCD EFB

1

C. Mansourian, et al. v. Regents of the University of California

2

Settlement of this action does not, in any way, limit or preclude Plaintiffs in the Mansourian

3 action from pursuing any claims for monetary damages they may have against the Regents or any of the

4 individual defendants in the matter of Mansourian, et al. v. Regents of the University of California, No.

5 S-03-2591-FCD-EFB (E.D. Cal.).

6 VI. RESOLUTION OF DISPUTES

7

In the case of any disputes arising out of or related to any alleged failure to perform in

8 accordance with the terms of this Stipulated Judgment, the Parties agree to meet and confer in good faith

9 to resolve any such dispute. Should a dispute as to any of the terms of the Stipulated Judgment arise, the

10 aggrieved party shall provide the other party notice, and the responding party shall have 30 days to

11 respond before the aggrieved party files any motion with the Court.

12 VII. JURISDICTION

13

A. Continuing Jurisdiction

14

The Court shall maintain continuing jurisdiction over this lawsuit for the length of the

15 Compliance Period, until the end of academic year 2019-2020, for the purpose of overseeing and

16 enforcing the terms herein.

17 VIII. SCOPE AND ENFORCEABILITY OF THE STIPULATED JUDGMENT

18

A. Modification and Termination

19

1. The terms and provisions of this Stipulated Judgment may be amended, modified

20 or expanded only by written Stipulated Judgment of the Parties and their respective attorneys.

21

2. If, for any reason, this Stipulated Judgment fails to become effective, the Parties

22 will be returned to their positions status quo ante with respect to the Action as if this Stipulated

23 Judgment had never been entered into.

24

3. To the extent that the Court makes immaterial changes to the terms of the

25 Stipulated Judgment and/or related documentation, the Parties shall nonetheless be bound to proceed.

26 To the extent that the Court makes material changes, each of the Parties shall have the right to withdraw

27 from this Stipulated Judgment. In such event, the Parties will be returned to their positions status quo

28 11
STIPULATED JUDGMENT AND ORDER CASE NO. CIV S-03-2591 FCD EFB

1 ante as if this Stipulated Judgment had not been entered into.

2

B. Authority to Bind

3

The undersigned each represent and warrants that they are authorized to sign on behalf of, and to

4 bind, Plaintiffs and Defendant, including that this Stipulated Judgment has been approved by the

5 Regents of the University of California.

6

C. Cooperation

7

The Parties agree to cooperate and execute any documents or take any action to effectuate this

8 Stipulated Judgment in a timely and expeditious manner. The Parties agree to cooperate in obtaining

9 Court approval of the Stipulated Judgment and complying with the provisions herein in a timely and

10 expeditious manner.

11

D. Independent Advice of Counsel

12

The Parties represent and declare that in executing the Stipulated Judgment they relied solely

13 upon their own judgment, belief and knowledge, and the advice and recommendations of their own

14 independently selected counsel, concerning the nature, extent and duration of their rights and claims,

15 and that they have not been influenced to any extent whatsoever in executing the same by any

16 representations or statements not expressly contained or referred to in the Stipulated Judgment.

17

E. Sole Consideration

18

The Parties agree that the consideration recited in the Stipulated Judgment is the sole and only

19 consideration for the Stipulated Judgment and no representations, promises or inducements have been

20 made by the Parties, other than the terms of the Stipulated Judgment.

21

F. Counterparts

22

The Stipulated Judgment may be executed in counterparts. Counterparts may be made by

23 facsimile. When each Party has signed and delivered at least one such counterpart, each counterpart

24 shall be deemed an original, and each counterpart taken together shall constitute one and the same

25 Stipulated Judgment. The Stipulated Judgment shall be deemed duly executed, effective, and binding,

26 upon the signing and delivery of the last counterpart by the Parties hereto.

27

28 12
STIPULATED JUDGMENT AND ORDER CASE NO. CIV S-03-2591 FCD EFB

1

SIGNATURES OF THE PARTIES

2

3 DATED: 4

5 DATED: 6

Jessica Bulala

7 DATED: 8

Laura Ludwig

9 DATED:
10

The Regents of The University of California

11
By: _ _ _ _ _ _ _ _ _ _ _ __ 12

13

Its:-------------

14
15 16 ATTORNEYS FOR PLAINTIFFS: 17 DATED:

APPROVED AS TO FORM EQUAL RIGHTS ADVOCATES

18

19

By: -=N=O"R"E"E"N""F"A"R"R'E'"L"L"'.,..,,-------

20 21 DATED: 22 23 24

THE STURDEVANT LAW FilUM A Professional Corporation

By:

-......,~A"i'"i"""..,.......~....------
MON!QUE OLIVIER

25
DATED:
26 27 28
STIPULATED JUDGMENT AND ORDER
CASE NO. C!VS-03-2591 FCDEFB

EQUITY LEGAL
By:-...,......,."""'~..,...,~-----­
KRISTEN GALLES 13

1

SIGNATURES OF THE PARTIES

2 3 DATED: _________________

4
co.. 5 DATED: (R/2/i I
6

JicaBulala

7 DATED: _ _ _ _ _ _ _ _ __ 8

Laura Ludwig

9 DATED: _________________
10

The Regents of The University ofCalifornia

11
By: _______________________ 12

13

Its:--------------------

14
15 16 ATTORNEYS FOR PLAINTIFFS: 17 DATED:

APPROVED AS TO FORM
EQUAL RIGHTS ADVOCATES

18 19

By: __~NO~R~EE~N~FA~R~R-EL-L--------

20 21 DATED: 22 23 24

THE STURDEVANT LAW FIRM A Professional Corporation
By: __M~O~N~IQ~UvE wOL~IV~IE-R--------

25 DATED: 26
27
28

EQUilY LEGAL By: __K~R~IS~TE~N~GA~L-LE-S --------
13

SIGNA'fURES OFTBE PARTtEs
2

3 DATED: 4
s DATED:
6
7 DATED: (p /zc,ft:.«>"1 • 8

KfiJS<OY Brust
Jessica Bulllla Laura LudWig

9 DATED:
10

The Regents ofThe University ofCallfomla

11 By: _ _ _ _ _ __:__ _ __

12

Illi: _ _ _ _ _ _ _ _ _ __

13

14
·ts.
.1/21/zP;:,'! '16 ATi'oRNEYBFOR PLA.JNTJFFS:
17 DATED:·

APP'ROVED AS TO Jl'ORM
EQUAL RIOHTS ADVOCATES

;";' II

.By:

20
21 .DATED:
22

THE STIJROBVANT LAW FIRM A Profemonal c oratio

. 23

24

25 DATED:
'2(j

27

28
.I s;;;;;;:'~~ AND0RDBR CAlia No. C!Vs.ll3-Z591 F<;:Diil'B

13

1

SIGNATURES OF THE PARTIES

2

3 DATED: 4

Kelsey Brust

5 DATED: 6

Jessica Bulala

7 DATED: 8

Laura Ludwig

9
DATED:
10

The Regents ofThe Universi ofCalifomia

11

12

13

14
15 16 ATTORNEYS FOR PLAINTIFFS: 17 DATED:

APPROVED AS TO FORM EQUAL RIGHTS ADVOCATES

18

By: __~~==~~==~-------------

19

NOREEN FARRELL

20 21 DATED: 22 23 24

THE STURDEVANT LAW FIRM A Professional Corporation
By: __~M~O=N=IQ=U=E~O~L=IV=I~E-R ----------

25
DATED:
26
27
28
STIPULATED JUDGMENT AND ORDER CASE No. CIV S-03-2591 FCD EFB

EQUITY LEGAL By: __=-~=---~c--~-------------
KRJSTEN GALLES
13

II

1 2 ATTORNEYS FOR DEFENDANT: 3 DATED: 4 5 6 7 8
9
10
11
12
13
14 15
16 I
17 II
' I
18
19
20 21 22 23 24 25 26 27 28
STIPULATED JUDGMENT AND ORDER CASE No. CIV S-03-2591 FCD EFB

PORTER SCOTT, P.C.
14

1

JUDGMENT AND ORDER

2

IT IS SO ADJUDGED AND ORDERED.

3

4 DATED: ________________________ 5

FRANK C. DAMRELL, JR. UNITED STATES DISTRICT JUDGE

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 15
STIPULATED JUDGMENT AND ORDER CASE NO. CIV S-03-2591 FCD EFB

Exhibit A to the Stipulated Judgment and Order

NOTICE OF PROPOSED SETTLEMENT OF CLASS ACTION
TO: All present, prospective, and future women students at University of California at Davis who seek to participate in and/or who are deterred from participating in intercollegiate athletics at University of California at Davis.

THIS NOTICE AFFECTS YOUR RIGHTS. PLEASE READ IT CAREFULLY.

A class action settlement, which must be approved by the Court, has been reached in connection with a lawsuit against the Regents of the University of California (“University”) alleging that the University of California at Davis (“UCD”) has not been providing equal athletic opportunities to females as required by Title IX, a federal antidiscrimination law.

The Court has preliminarily approved the settlement and authorized this Notice. A copy of the Stipulated Judgment, which outlines the terms of the settlement, is available at: http://www.sturdevantlaw.com/Cases.php?Case=24 and/or www.equalrights.org. It can also be obtained at the office of the Clerk of the United States District Court in Sacramento, at the address listed below.

As a class member, you may do one of two things: (1) if the settlement is satisfactory, you may do nothing and be bound by the terms and conditions of the settlement; or (2) if you object to the settlement, including the provision regarding attorneys’ fees, you may submit written objections to the Court and to counsel for Plaintiffs and the Class (“Class Counsel”). Class Counsel are Equal Rights Advocates, The Sturdevant Law Firm, and Equity Legal. You may also submit comments in favor of the settlement. If you wish to object or comment, you must submit your written objections or comments to the Court Clerk and Class Counsel at the following addresses:

Clerk of the United States District Court Eastern District of California
501 I Street, Suite 4-200
Sacramento, CA 95814 Attention: Brust v. Regents of the University of
California, Case No. 2:07-CV-01488

Brust Settlement The Sturdevant Law Firm 354 Pine Street, 4th Floor San Francisco, CA 94104

Objections or comments must be postmarked or, if not delivered by U.S. mail, file-stamped by the Court by no later than September 29, 2009. Do not telephone the Court.

A hearing before the Honorable Frank C. Damrell, Jr., United States District Judge, on the fairness of this settlement shall be held at the United States District Court, at the above address, on October 16, 2009 at 10:00 a.m. As a class member, you have the right to attend and be heard at this hearing. The settlement is not binding on class members until it is finally approved by the Court.

For more information about the settlement, you may contact The Sturdevant Law Firm at (415) 477-2410 or Equal Rights Advocates at (415) 621-0672.

SUMMARY OF THE PROPOSED SETTLEMENT
The proposed settlement is the result of an agreement reached by all parties to the lawsuit that was filed in 2007 by then UCD students Kelsey Brust, Jessica Bulala and Laura Ludwig on behalf of female students at UCD. The proposed settlement sets forth terms to help ensure that female students will have an equal opportunity to participate in varsity athletics at UCD, including the steps UCD will take to provide equal varsity opportunities to women at UCD, which may include the addition of women’s varsity teams. The proposed settlement also creates a fund which will support the development of club sports at UCD.
The University has expressly denied and continues to deny all claims of wrongdoing or liability arising out of any of the conduct alleged in the lawsuit. The Court has not ruled on the merits of Plaintiffs’ claims and does not provide herein an opinion on the claims. Nothing in this Notice is to be construed as an expression of any view or opinion by the Court concerning any of the claims, allegations, denials or defenses in the lawsuit.
EQUITABLE RELIEF
1. Female Participation Differential
Providing equal opportunity for participation in athletics is measured by reviewing the Female Participation Differential, which is the difference between the percentage of full-time female undergraduate enrollment and the percentage of female intercollegiate participation opportunities. In other words, if 55% of the students enrolled are female and 50% of the students participating in varsity athletics are female, then the Female Participation Differential would be 5%.
UCD has agreed to take the following steps in order to reduce the Female Participation Differential:
 By the academic year 2009-2010, the Female Participation Differential will be no more than 3.5%.
 By the academic year 2010-2011, the Female Participation Differential will be no more than 2.5%. If UCD does not meet this threshold, it will either 1) add a new women’s varsity team to compete in academic year 2013-2014; or 2) achieve a Female Participation Differential of 2.5% by the academic year 2011-2012.
 By the academic year 2013-2014, the Female Participation Differential will be no more than 1.5%, as long as the percentage of females enrolled at UCD on November 15, 2014 is less than 58% of the total population. If the percentage of females enrolled is 58%, or higher, than the Female Participation Differential will be no more than 2.0%. If UCD does not meet this threshold, it will either 1) add a new women’s varsity team to compete in academic year 2016-2017; or 2) achieve a Female Participation Differential of 1.5% or 2%, depending on which threshold, as described above, applies by the academic year 2014-2015.
 By the academic year 2016-2017, the Female Participation Differential will be no more than 1.5%. If UCD does not meet this threshold, it will either 1) add a new

women’s varsity team to compete in academic year 2019-2020; or 2) achieve a Female Participation Differential of 1.5% by the academic year 2017-2018.
Plaintiffs’ purpose in agreeing to the time frames set forth in this section is to maximize the potential to add women’s participation opportunities.
2. Fund to Support Female Athlete Development
As part of the settlement, the University will pay $110,000 as a fund to a nonprofit organization to be chosen by Plaintiffs. The Fund shall be used solely to support club sports at UCD. Subject to that limitation, Plaintiffs have the sole discretion to determine how the Fund will be expended. Plaintiffs have exercised that discretion and determined that the Fund will be used for the development of women athletes through the UCD club sports programs.
Distribution of monies from the Fund will be pursuant to a process determined by Plaintiffs in conjunction with the non-profit organization. Any administrative fees or costs required to administer the Fund, will be paid out of the fund. Monies distributed from the Fund are in addition to any monies otherwise allocated to the club sports teams by UCD and may not be used as a basis for denying budget requests or otherwise be determinative of club sports teams budgets.
3. Addition of Women’s Varsity Teams
UCD will continue to implement the addition of a women’s varsity field hockey team to commence competition in the 2009-2010 academic year. UCD will support the addition of field hockey by providing sufficient funding to the women’s varsity field hockey team to ensure recruitment, competition, development, and with the understanding that scholarships are phased in under standard UCD practice with respect to all new varsity teams. UCD will also ensure equitable treatment of the team, as required by law.
UCD will also continue to support a women’s field hockey club team, as long as there is continued sufficient student interest. The field hockey club team will not have preferential status in regard to funding or other aspects over other club sports.
If any female varsity team is added to UCD pursuant to, or during the settlement period, that team will also receive the support described herein for the varsity field hockey team.
4. Selection Process for Addition of Women’s Varsity Teams
If UCD adds any additional female varsity teams pursuant to or during the settlement period, the selection process for choosing the female varsity team to be added will consist of, at least, the following steps:
• UCD shall notify female undergraduates, including but not limited to those who are participating in club sports, of the opportunity to learn about the Selection Process.
• A student will remain on the Sports Selection Advisory Committee.

• UCD shall advise any individual or team seeking varsity status of the existence of prior applications submitted by that team, if any, for that sport, and provide a copy of the prior applications upon request.
• UCD will provide the criteria to applicants and will follow the provided criteria in selecting a team.
• If UCD uses different criteria as the basis for the Selection Process than it is currently using, at any time throughout the duration of the settlement period, it will inform Class Counsel.
5. Squad Sizes of Women’s Varsity Teams

If any UCD women’s varsity team has a squad size which is 15% over the NCAA Division I average squad size reported that year for that sport, UCD’s Title IX Compliance Officer will investigate the size of that team and report conclusions in his/her annual Title IX Compliance Report. The Title IX Compliance Officer may consider alternative squad size models in his/her investigation. UCD will not require any coach to carry a minimum number of participants on a team, aside from NCAA requirements.
MONITORING OF SETTLEMENT

The Court shall maintain continuing jurisdiction over this lawsuit for the length of the settlement period, which is until the end of academic year 2019-2020, for the purpose of overseeing and enforcing the terms of the settlement. The parties have agreed that UCD will provide information and reports to Class Counsel as more fully set forth in the Stipulated Judgment.

INDIVIDUAL DAMAGES AND ATTORNEYS’ FEES AND EXPENSES

Subject to Court approval, the Regents will pay $8,000 to Plaintiffs Kelsey Brust, Laura Ludwig and Jessica Bulala. Subject to Court approval, the University has also agreed to pay reasonable attorney’s fees and costs to Class Counsel as part of the settlement. The amount agreed upon is $460,000.

RELEASES BY THE CLASS

The terms set forth above resolve all of Plaintiffs’ class-based claims covered by the Stipulated Judgment. The Stipulated Judgment resolves all class member claims for injunctive relief based upon the same predicate facts asserted in the Complaint until expiration of the Court’s jurisdiction through the end of the academic year 2019-2020. Class members do not release any individual claims for damages.

Date: ________________

The Honorable Frank C. Damrell, Jr. United States District Court

EXHIBIT B

NOTICE OF PROPOSED SETTLEMENT OF CLASS ACTION
TO: All present, prospective, and future women students at University of California at Davis who seek to participate in and/or who are deterred from participating in intercollegiate athletics at University of California at Davis.

THIS NOTICE AFFECTS YOUR RIGHTS. PLEASE READ IT CAREFULLY.

A class action settlement, which must be approved by the Court, has been reached in connection with a lawsuit against the Regents of the University of California (“University”) alleging that the University of California at Davis (“UCD”) has not been providing equal athletic opportunities to females as required by Title IX, a federal antidiscrimination law.

The Court has preliminarily approved the settlement and authorized this Notice. A copy of the Stipulated Judgment, which outlines the terms of the settlement, is available at: http://www.sturdevantlaw.com/Cases.php?Case=24 and/or www.equalrights.org. It can also be obtained at the office of the Clerk of the United States District Court in Sacramento, at the address listed below.

As a class member, you may do one of two things: (1) if the settlement is satisfactory, you may do nothing and be bound by the terms and conditions of the settlement; or (2) if you object to the settlement, including the provision regarding attorneys’ fees, you may submit written objections to the Court and to counsel for Plaintiffs and the Class (“Class Counsel”). Class Counsel are Equal Rights Advocates, The Sturdevant Law Firm, and Equity Legal. You may also submit comments in favor of the settlement. If you wish to object or comment, you must submit your written objections or comments to the Court Clerk and Class Counsel at the following addresses:

Clerk of the United States District Court Eastern District of California
501 I Street, Suite 4-200
Sacramento, CA 95814 Attention: Brust v. Regents of the University of
California, Case No. 2:07-CV-01488

Brust Settlement The Sturdevant Law Firm 354 Pine Street, 4th Floor San Francisco, CA 94104

Objections or comments must be postmarked or, if not delivered by U.S. mail, file-stamped by the Court by no later than September 29, 2009. Do not telephone the Court.

A hearing before the Honorable Frank C. Damrell, Jr., United States District Judge, on the fairness of this settlement shall be held at the United States District Court, at the above address, on October 16, 2009 at 10:00 a.m. As a class member, you have the right to attend and be heard at this hearing. The settlement is not binding on class members until it is finally approved by the Court.

For more information about the settlement, you may contact The Sturdevant Law Firm at (415) 477-2410 or Equal Rights Advocates at (415) 621-0672.

SUMMARY OF THE PROPOSED SETTLEMENT
The proposed settlement is the result of an agreement reached by all parties to the lawsuit that was filed in 2007 by then UCD students Kelsey Brust, Jessica Bulala and Laura Ludwig on behalf of female students at UCD. The proposed settlement sets forth terms to help ensure that female students will have an equal opportunity to participate in varsity athletics at UCD, including the steps UCD will take to provide equal varsity opportunities to women at UCD, which may include the addition of women’s varsity teams. The proposed settlement also creates a fund which will support the development of club sports at UCD.
The University has expressly denied and continues to deny all claims of wrongdoing or liability arising out of any of the conduct alleged in the lawsuit. The Court has not ruled on the merits of Plaintiffs’ claims and does not provide herein an opinion on the claims. Nothing in this Notice is to be construed as an expression of any view or opinion by the Court concerning any of the claims, allegations, denials or defenses in the lawsuit.
EQUITABLE RELIEF
1. Female Participation Differential
Providing equal opportunity for participation in athletics is measured by reviewing the Female Participation Differential, which is the difference between the percentage of full-time female undergraduate enrollment and the percentage of female intercollegiate participation opportunities. In other words, if 55% of the students enrolled are female and 50% of the students participating in varsity athletics are female, then the Female Participation Differential would be 5%.
UCD has agreed to take the following steps in order to reduce the Female Participation Differential:
 By the academic year 2009-2010, the Female Participation Differential will be no more than 3.5%.
 By the academic year 2010-2011, the Female Participation Differential will be no more than 2.5%. If UCD does not meet this threshold, it will either 1) add a new women’s varsity team to compete in academic year 2013-2014; or 2) achieve a Female Participation Differential of 2.5% by the academic year 2011-2012.
 By the academic year 2013-2014, the Female Participation Differential will be no more than 1.5%, as long as the percentage of females enrolled at UCD on November 15, 2014 is less than 58% of the total population. If the percentage of females enrolled is 58%, or higher, than the Female Participation Differential will be no more than 2.0%. If UCD does not meet this threshold, it will either 1) add a new women’s varsity team to compete in academic year 2016-2017; or 2) achieve a Female Participation Differential of 1.5% or 2%, depending on which threshold, as described above, applies by the academic year 2014-2015.
 By the academic year 2016-2017, the Female Participation Differential will be no more than 1.5%. If UCD does not meet this threshold, it will either 1) add a new

women’s varsity team to compete in academic year 2019-2020; or 2) achieve a Female Participation Differential of 1.5% by the academic year 2017-2018.
Plaintiffs’ purpose in agreeing to the time frames set forth in this section is to maximize the potential to add women’s participation opportunities.
2. Fund to Support Female Athlete Development
As part of the settlement, the University will pay $110,000 as a fund to a nonprofit organization to be chosen by Plaintiffs. The Fund shall be used solely to support club sports at UCD. Subject to that limitation, Plaintiffs have the sole discretion to determine how the Fund will be expended. Plaintiffs have exercised that discretion and determined that the Fund will be used for the development of women athletes through the UCD club sports programs.
Distribution of monies from the Fund will be pursuant to a process determined by Plaintiffs in conjunction with the non-profit organization. Any administrative fees or costs required to administer the Fund, will be paid out of the fund. Monies distributed from the Fund are in addition to any monies otherwise allocated to the club sports teams by UCD and may not be used as a basis for denying budget requests or otherwise be determinative of club sports teams budgets.
3. Addition of Women’s Varsity Teams
UCD will continue to implement the addition of a women’s varsity field hockey team to commence competition in the 2009-2010 academic year. UCD will support the addition of field hockey by providing sufficient funding to the women’s varsity field hockey team to ensure recruitment, competition, development, and with the understanding that scholarships are phased in under standard UCD practice with respect to all new varsity teams. UCD will also ensure equitable treatment of the team, as required by law.
UCD will also continue to support a women’s field hockey club team, as long as there is continued sufficient student interest. The field hockey club team will not have preferential status in regard to funding or other aspects over other club sports.
If any female varsity team is added to UCD pursuant to, or during the settlement period, that team will also receive the support described herein for the varsity field hockey team.
4. Selection Process for Addition of Women’s Varsity Teams
If UCD adds any additional female varsity teams pursuant to or during the settlement period, the selection process for choosing the female varsity team to be added will consist of, at least, the following steps:
• UCD shall notify female undergraduates, including but not limited to those who are participating in club sports, of the opportunity to learn about the Selection Process.
• A student will remain on the Sports Selection Advisory Committee.

• UCD shall advise any individual or team seeking varsity status of the existence of prior applications submitted by that team, if any, for that sport, and provide a copy of the prior applications upon request.
• UCD will provide the criteria to applicants and will follow the provided criteria in selecting a team.
• If UCD uses different criteria as the basis for the Selection Process than it is currently using, at any time throughout the duration of the settlement period, it will inform Class Counsel.
5. Squad Sizes of Women’s Varsity Teams

If any UCD women’s varsity team has a squad size which is 15% over the NCAA Division I average squad size reported that year for that sport, UCD’s Title IX Compliance Officer will investigate the size of that team and report conclusions in his/her annual Title IX Compliance Report. The Title IX Compliance Officer may consider alternative squad size models in his/her investigation. UCD will not require any coach to carry a minimum number of participants on a team, aside from NCAA requirements.
MONITORING OF SETTLEMENT

The Court shall maintain continuing jurisdiction over this lawsuit for the length of the settlement period, which is until the end of academic year 2019-2020, for the purpose of overseeing and enforcing the terms of the settlement. The parties have agreed that UCD will provide information and reports to Class Counsel as more fully set forth in the Stipulated Judgment.

INDIVIDUAL DAMAGES AND ATTORNEYS’ FEES AND EXPENSES

Subject to Court approval, the Regents will pay $8,000 to Plaintiffs Kelsey Brust, Laura Ludwig and Jessica Bulala. Subject to Court approval, the University has also agreed to pay reasonable attorney’s fees and costs to Class Counsel as part of the settlement. The amount agreed upon is $460,000.

RELEASES BY THE CLASS

The terms set forth above resolve all of Plaintiffs’ class-based claims covered by the Stipulated Judgment. The Stipulated Judgment resolves all class member claims for injunctive relief based upon the same predicate facts asserted in the Complaint until expiration of the Court’s jurisdiction through the end of the academic year 2019-2020. Class members do not release any individual claims for damages.

Date: ________________

The Honorable Frank C. Damrell, Jr. United States District Court

 
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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

12

Sacramento Division

13 KELSEY BRUST, et al.,

CASE NO. 2:07-CV-01488-FCD-EFB

14 15 vs.

Plaintiffs,

16

REGENTS OF THE UNIVERSITY OF CALIFORNIA,

17

Defendant.

CLASS ACTION
ORDER GRANTING JOINT MOTION FOR FINAL APPROVAL OF SETTLEMENT, ENTRY OF STIPULATED JUDGMENT, AND AWARD OF ATTORNEYS’ FEES AND COSTS

18

19

20

This matter came before the Court at the Hearing on October 16, 2009. The Court has

21 considered the Stipulated Judgment and Order (“Stipulated Judgment”), along with a Motion for

22 Preliminary Approval and proposed notice to the class regarding settlement, both of which were

23 preliminarily approved by this Court on August 11, 2009, the absence of any objections received

24 regarding the Stipulated Judgment, the record in the Action, the evidence presented and the arguments

25 and authorities presented by counsel, and for good cause appearing, the Court now GRANTS final

26 approval of the Settlement and Award of Attorneys’ Fees and Costs and enters the Stipulated Judgment.

27

28

1

THE COURT FINDS AND ORDERS AS FOLLOWS:

2

1. All terms and phrases used hereafter in this Final Approval Order shall have the same

3 meanings ascribed to them in the Stipulated Judgment, a copy of which is submitted herewith.

4

2. This Court has jurisdiction over the subject matter of the litigation and over all parties to

5 this litigation.

6

A. Final Approval of Settlement and Entry of Stipulated Judgment.

7

1. The Court has reviewed and considered the Stipulated Judgment attached hereto, together

8 with all the exhibits thereto. The Court has also read and considered the Declarations of Monique

9 Olivier, Noreen Farrell, David Burkett, Dina Lassow, and Mark Chavez in support of final approval and

10 the Declarations of Monique Olivier, Nancy Sheehan, Noreen Farrell, and Dina Lassow in support of

11 preliminary approval. The Court finds that the Stipulated Judgment is the result of substantial arm’s-
12 length negotiations between the parties. The significant and comprehensive relief obtained, the
13 thorough mediation process, and the involvement of mediator Michael Dickstein in the settlement
14 process, confirm that the negotiations were not collusive. The Stipulated Judgment provides a
15 substantial increase in the opportunities available for women athletes, maximizes the chances of adding
16 women’s teams, provides funds to support the development of UCD female students’ athletic abilities
17 and establishes monitoring of the process for the addition of teams and varsity squad sizes. For all these
18 reasons, the Court finds that the settlement is fair, reasonable and adequate. See Officers for Justice v.
19 Civil Serv. Comm’n of San Francisco, 688 F.2d 615, 625 (9th Cir.1982). (See also Preliminary
20 Approval Order [Dkt. #106], entered Aug. 11, 2009.)
21 2. The Court finds that the monetary relief of $8,000 to each of the representative Plaintiffs
22 is fair, reasonable, and adequate and hereby orders it be paid pursuant to the provisions of the Settlement
23 Agreement.
24 3. Notice for a Rule 23(b)(2) class is discretionary. Molski v. Gleich, 318 F.3d 937, 947-48
25 (9th Cir. 2003). In its discretion, this Court ordered that notice be given to the class of the terms of the
26 proposed settlement. The Court finds that the Notice of Settlement of Class Action clearly and
27 concisely informed class members of all the relevant aspects of the litigation, including the binding
28 effect of this Court’s decision to approve the settlement after the fairness hearing, the provision

1 regarding payment of attorneys’ fees and costs, and the right to and procedure for objecting to the

2 Stipulated Judgment. Notice of this nature is sufficient to meet the requirements of due process and

3 Rule 23. Molski v. Gleich, 318 F.3d 937, 947-48 (9th Cir. 2003). The notice to class members, as well

4 as the means and methods by which the parties provided that notice to class members, was proper and

5 adequate, and is hereby finally approved.

6

4. Defendant shall provide relief to the Class in the form and manner specified in the

7 Settlement Agreement.

8

5. The provisions of this Final Order are applicable to and binding upon and inure to the

9 benefit of each party to the Action (including each Plaintiffs, class members, and Defendant).

10

B. Award of Attorneys’ Fees and Costs

11

The Court has the discretion to award reasonable fees and costs based on the lodestar method as

12 requested by Class Counsel. Rodriguez v. West Publishing Corp., 563 F.3d 948, 967 (9th Cir. 2009);

13 Ferland v. Conrad Credit Corp., 244 F.3d 1145, 1149 n.4 (9th Cir. 2001). Class counsel has submitted

14 documentation supporting an award of fees of $421,812, plus $38,188 in costs. The attorneys’ fees and

15 cost award requested, $460,000, reflects a significant discount from the actual fees expended by counsel

16 for Plaintiffs, which is over $1,016,000. The attorneys’ fees and costs award is reasonable and

17 appropriate in light of the substantial benefit provided to the class, the fact that the amount of fees and

18 costs sought is significantly below Class Counsel’s lodestar, the fact that Defendant does not contest the

19 amount sought, and the fact that the parties negotiated all of the settlement terms pertaining to class

20 relief prior to discussions concerning the payment of attorneys’ fees and costs. The Court authorizes

21 and approves the award of attorneys’ fees and costs in the total amount of $460,000 and that sum is

22 ordered to be paid pursuant to the provisions of the Stipulated Judgment.

23

C. Stipulated Judgment

24

The Court hereby concurrently enters the Stipulated Judgment.

25

IT IS SO ORDERED.

26

27 DATED: October 19, 2009

FRANK

28

UNITED

C. DAMRELL, JR. STATES DISTRICT JUDGE

 
 1 James C. Sturdevant, State Bar No. 94551

(jsturdevant@sturdevantlaw.com)

2

Monique Olivier, State Bar No. 190385 (molivier@sturdevantlaw.com)

Whitney Huston, State Bar No. 234863

3 (whuston@sturdevantlaw.com)

THE STURDEVANT LAW FIRM

4

A Professional Corporation 354 Pine Street, Fourth Floor

5

San Francisco, CA 94104 Telephone: (415) 477-2410

Facsimile: (415) 477-2420

6

Debra Smith, State Bar No. 147863

7

(dsmith@equalrights.org) Noreen Farrell, State Bar No. 191600

(nfarrell@equalrights.org)

8 Lisa Leebove, State Bar No. 186705

(lleebove@equalrights.org)

9

EQUAL RIGHTS ADVOCATES 1663 Mission Street, Suite 250

10

San Francisco, CA 94103 Telephone: (415) 621-0672

Facsimile: (415) 621-6744

11

Kristen Galles, State Bar No. 148740

12

(kgalles@comcast.net) EQUITY LEGAL

10 Rosecrest Avenue

13 Alexandria, VA 22301

Telephone: (703) 683-4491

14 Attorneys for Plaintiffs

15 PORTER SCOTT

A Professional Corporation

16

Nancy J. Sheehan, State Bar No. 109419 (nsheehan@porterscott.com)

17

350 University Avenue, Suite 200 Sacramento, California 95825

Telephone: (916) 929-1481

18 Facsimile: (916) 927-3706

19 Attorneys for Defendant

20

UNITED STATES DISTRICT COURT

21

EASTERN DISTRICT OF CALIFORNIA

22 KELSEY BRUST, et al.,

CASE NO. 2:07-CV-01488-FCD-EFB

23 vs.

Plaintiffs,

24 REGENTS OF THE UNIVERSITY OF 25 CALIFORNIA,

CLASS ACTION STIPULATED JUDGMENT AND ORDER

26

Defendant.

27

28

STIPULATED JUDGMENT AND ORDER CASE NO. CIV S-03-2591 FCD EFB

1

This Stipulated Judgment is entered into by and between plaintiffs Kelsey Brust (“Brust”),

2 Jessica Bulala (“Bulala”), and Laura Ludwig (“Ludwig”) (collectively, “Plaintiffs”), individually and

3 as representatives of the Class (as defined below), on the one hand, and The Regents of the University of

4 California (“Regents” or “Defendant”), on the other, for conduct relating to the University of California at

5 Davis (“UCD”).

6 I. INTRODUCTION

7

A. On July 24, 2007, Plaintiffs filed a proposed class action complaint against Defendant

8 Regents, and individual defendants UCD Chancellor Larry Vanderhoef and UCD Athletic Director Greg

9 Warzecka (collectively “Defendants”) in the United States District Court for the Eastern District of

10 California, alleging violations of: (1) the Equal Athletic Participation Opportunity requirements of Title

11 IX of the Education Amendments of 1972 (20 U.S.C. § 1681 et seq.) (“Title IX”); (2) the Fourteenth

12 Amendment to the United States Constitution, as enforced through 42 U.S.C. § 1983 (“§ 1983”); (3) the

13 Unruh Civil Rights Act of California state law (Cal. Civ. Code § 51 et seq.); and (4) California public

14 policy (“the Action”).

15

B. On October 26, 2007, Defendants moved to dismiss the Action pursuant to Federal Rules

16 of Civil Procedure, rule 12(b)(6). On December 12, 2007, the Court granted Defendants’ motion in part,

17 dismissing Plaintiffs’ § 1983 claim and their state law claims, and dismissing individual defendants

18 Vanderhoef and Warzecka.

19

C. On August 14, 2008, Plaintiffs filed a Motion for Class Certification. On October 24,

20 2008, the Court entered an Order certifying the following class (“the Class”):

21

All present, prospective, and future women students at the University of California at Davis who

seek to participate in and/or who are deterred from participating in intercollegiate athletics at the

22

University of California at Davis.

23

Plaintiffs were appointed class representatives and Plaintiffs’ Counsel was appointed as Class

24 Counsel.

25

D. The lawsuit has been vigorously prosecuted and defended and has included significant

26 discovery and motion practice.

27

E. On January 30th, and again on February 25th 2009, the Parties held two mediation

28 1
STIPULATED JUDGMENT AND ORDER CASE NO. CIV S-03-2591 FCD EFB

1 sessions conducted by Michael Dickstein of Dickstein Dispute Resolution. Following these two

2 mediations sessions, the parties had numerous additional conversations and negotiations regarding

3 settlement, which were also conducted by Michael Dickstein. At the conclusion of these sessions and

4 conversations, the Parties agreed to settle this Action.

5

F. Plaintiffs and Plaintiffs’ Counsel (as defined below) have agreed to settle this Action,

6 pursuant to the provisions of this Stipulated Judgment, considering, among other things: (1) the

7 substantial benefits available to Plaintiffs and the Class under the terms of this Stipulated Judgment;

8 (2) the attendant risks and uncertainties of litigation, especially in complex litigation such as this Action

9 as well as the difficulties and delays inherent in such litigation; and (3) the desirability of consummating

10 this Stipulated Judgment promptly to provide effective relief to the Class.

11

G. The fact that the Regents has entered into this Stipulated Judgment is not an admission of

12 liability or an admission that it is not or has not been in compliance with Title IX. The terms of the

13 settlement apply only to the University of California at Davis and should not be used as precedent for

14 Defendant’s other schools or campuses.

15

H. This matter involves contested issues of fact and liability and there has been no

16 adjudication by the Court of the claims asserted, nor finding of fact made. The Stipulated Judgment is

17 entered into solely for the purpose of allowing the Court to maintain jurisdiction over the case for the

18 time periods specified herein.

19

I. The Parties make the promises contained in this Stipulated Judgment for good and

20 valuable consideration, the adequacy of which is hereby acknowledged.

21 II. DEFINITIONS

22

A. As used in this Stipulated Judgment and the attached Exhibits, which are an integral part

23 of the Stipulated Judgment and are incorporated in their entirety by reference, the following terms have

24 the meanings specified below:

25

1. “Action” means Kelsey Brust, et al. v. Regents of the University of California, et

26 al., Case No. 2:07-CV-01488-FCD-EFB (E.D. Cal.).

27

2. “Class” means: All present, prospective, and future women students at the

28 2
STIPULATED JUDGMENT AND ORDER CASE NO. CIV S-03-2591 FCD EFB

1 University of California at Davis who seek to participate in and/or who are deterred from participating in

2 intercollegiate athletics at the University of California at Davis during the Compliance Period.

3

3. “Class Counsel” or “Plaintiffs’ Counsel” means Equal Rights Advocates, The

4 Sturdevant Law Firm, and Equity Legal.

5

4. “Class Member” means a person who falls within the Class (as defined above).

6

5. “Notice” means the notice provided to the Class, the proposed form of which is

7 attached hereto as Exhibit A.

8

6. “Compliance Period” means the period from the Effective Date of this Stipulated

9 Judgment until the termination of this Stipulated Judgment at the end of the 2019-2020 academic year.

10

7. “Defendant” means The Regents of the University of California (“Regents” or

11 “Defendant”).

12

8. “Defendant’s Counsel” means Porter Scott, PC.

13

9. “Enrollment Numbers” means the total number of full-time undergraduate

14 students enrolled at the University of California at Davis, broken down by gender.

15

10. “Effective Date” means the date when each and all of the following conditions

16 have occurred:

17

a. This Stipulated Judgment has been signed by Plaintiffs, Defendant,

18 Plaintiffs’ Counsel, Defendant’s Counsel;

19

b. The Court has approved notice to the Class and notice has been issued;

20

c. The Court has both preliminarily and finally approved the Stipulated

21 Judgment;

22

d. The Court has entered the Stipulated Judgment and Order.

23

11. “Equity in Athletics Disclosure Act Report (‘EADA Report’)” means the

24 annual report submitted by UCD to the U.S. Department of Education pursuant to its obligations under

25 the Equity in Athletics Disclosure Act of 1994, 20 U.S.C. § 1092. The EADA Report includes data on

26 enrollment, varsity athletic participation, staffing, and revenues and expenses, broken down by gender.

27

12. “Female Participation Differential” means: The difference between the

28 3
STIPULATED JUDGMENT AND ORDER CASE NO. CIV S-03-2591 FCD EFB

1 percentage of full-time female undergraduate enrollment and the percentage of female intercollegiate

2 participation opportunities, as based on enrollment and participation numbers set forth in the EADA

3 Report issued in the calendar year in question.

4

13. “NCAA Division I average squad size” means the average number of

5 participants on a Division I level squad, broken down by gender, as determined by the statistical

6 information compiled by the NCAA regarding participation in intercollegiate athletics at its member

7 institutions and reported yearly.

8

14. “Parties” means and refers to Plaintiffs and Defendant.

9

15. “Selection Process” means and refers to the process employed by UCD, upon

10 determination that UCD will add a varsity intercollegiate athletic team, to determine which varsity team

11 to add. The process includes, but is not limited to: the creation of a Sports Selection Advisory

12 Committee, the distribution and publication of UCD’s intent to add a varsity team and the criteria

13 relating to the addition of a varsity team, the review of applications by the Sports Selection Advisory

14 Committee, and the review of the recommendation of the Sports Selection Advisory Committee by the

15 Title IX Advisory Committee.

16

16. “Title IX Compliance Officer” means an employee of UCD who is qualified and

17 appointed to serve as the individual responsible for ensuring compliance with Equal Athletic

18 Participation Opportunity requirements of Title IX of the Education Amendments of 1972, 20 U.S.C. §

19 1681 et seq. (“Title IX”), which prohibits sex discrimination in educational institutions receiving federal

20 financial assistance.

21

17. “Title IX Compliance Report” means the annual report prepared by the Chair of

22 the Title IX Advisory Committee and the annual report prepared by the Title IX Compliance Officer

23 regarding the UCD’s compliance with Title IX in regard to athletics.

24 III. SETTLEMENT RELIEF

25

A. Equitable Relief

26

The Parties hereby agree that, conditioned upon entry of the Stipulated Judgment and

27 Order by the District Court, Defendant shall do the following:

28 4
STIPULATED JUDGMENT AND ORDER CASE NO. CIV S-03-2591 FCD EFB

1

1. Addition of Women’s Varsity Teams

2

a. UCD shall continue implementation of the addition of a women’s varsity

3

field hockey team to commence competition in the 2009-2010 academic

4

year. UCD’s support of women’s varsity field hockey shall include:

5

i

UCD shall provide sufficient funding to the women’s varsity field

6

hockey team to ensure recruitment, competition, development, and

7

with the understanding that scholarships are phased in under

8

standard UCD practice with respect to all new varsity teams. UCD

9

shall ensure equitable treatment of the team as required by law.

10

ii In May, 2009 UCD provided campus-wide notice of open tryouts

11

for the women’s field hockey team (including publication in the

12

campus newspaper, posting at club sports office and distribution of

13

notice to field hockey club team). As a result of these tryouts and

14

recruitment, a roster for the women’s field hockey team has been

15

created and the team is scheduled to start competition in August,

16

2009.

17

iii UCD shall maintain the women’s field hockey club team so long

18

as there is continued sufficient student interest.

19

iv This Stipulated Judgment does not give the field hockey club team

20

precedential preferential status in regard to funding or other

21

aspects over other club sports.

22

b. Any varsity team added pursuant to, or throughout the duration of, this Stipulated

23

Judgment shall receive UCD support set forth under Section III.A.1.a., specific to

24

the team added.

25

i

The Selection Process for the addition of any future varsity team

26

added pursuant to, or throughout the duration of, this Stipulated

27

Judgment shall include, at least, the following steps: UCD shall

28 5
STIPULATED JUDGMENT AND ORDER CASE NO. CIV S-03-2591 FCD EFB

1

notify female undergraduates, including but not limited to those

2

who are participating in club sports, of the opportunity to learn

3

about the Selection Process.

4

ii A student will remain on the Sports Selection Advisory

5

Committee.

6

iii UCD shall advise any individual or team seeking varsity status of

7

the existence of prior applications submitted by that team, if any,

8

for that sport and provide a copy of the prior applications upon

9

request.

10

iv UCD shall provide the criteria to applicants and will follow the

11

provided criteria in selecting a team.

12

v If UCD uses different criteria as the basis for the Selection Process

13

than it is currently using, at any time throughout the duration of

14

this Stipulated Judgment, it shall provide a copy of the changed

15

criteria to Plaintiffs’ Counsel.

16

2. Squad Sizes of Women’s Varsity Teams

17

a. If any UCD women’s varsity team has a squad size which is over 15% of

18

the NCAA Division I average squad size (as reported by the NCAA for

19

the previous year from the year in question), UCD’s Title IX Compliance

20

Officer shall investigate the size of that team and include his/her

21

conclusions from the investigation in the Title IX Compliance Report.

22

The Title IX Compliance Report should also include the roster sizes/actual

23

number for any team which is over 15% of the NCAA Division I average

24

squad size. The Title IX Compliance Officer may consider alternative

25

squad size models in his/her investigation.

26

b. The coaches of women’s teams at UCD will not be required to carry a

27

minimum number of participants on a team, aside from NCAA

28 6
STIPULATED JUDGMENT AND ORDER CASE NO. CIV S-03-2591 FCD EFB

1

requirements.

2

3. Female Participation Differential

3

a. The Female Participation Differential for the academic year 2009/2010

4

shall be no more than 3.5%, as reflected in the EADA Report issued in the

5

Fall of 2010.

6

b. The Female Participation Differential for the academic year 2010/2011

7

shall be no more than 2.5% as reflected in the EADA Report issued in the

8

Fall of 2011. If UCD does not meet this threshold, it shall decide whether

9

to add a new women’s varsity team to compete in academic year

10

2013/2014, or for the EADA Report issued in the Fall of 2012 to reflect

11

2.5% Female Participation Differential

12

c. The Female Participation Differential for the academic year 2013/2014

13

shall be no more than 1.5% as reflected in the EADA Report issued in the

14

Fall of 2014, as long as the percentage of women reflected in the

15

Enrollment Numbers on November 15, 2014 is less than 58%. If the

16

percentage of undergraduate women enrolled on November 15, 2014 is

17

58% or higher, then the Female Participation Differential shall be no more

18

than 2.0%. If UCD does not meet either threshold, it shall decide whether

19

to add a new women’s varsity team to compete by academic year 2016-

20

2017, or for the EADA Report issued in the Fall of 2015 to reflect a

21

Female Participation Differential of no more than 1.5% or 2%, depending

22

on which threshold, as described above, applies.

23

d. The Female Participation Differential for the academic year 2016/2017

24

shall be no more than 1.5% as reflected in the EADA Report issued in the

25

Fall of 2017. If UCD does not meet this threshold, it shall decide whether

26

to add a new women’s varsity team to compete by academic year

27

2019/2020 or for the EADA Report issued in the Fall of 2018 to reflect

28 7
STIPULATED JUDGMENT AND ORDER CASE NO. CIV S-03-2591 FCD EFB

1

1.5% Female Participation Differential.

2

e. Plaintiffs’ purpose in agreeing to the time frames set forth in this section is

3

to maximize the potential to add women’s participation opportunities. In

4

the event of any cuts to any men’s varsity teams, UCD will not reference

5

this lawsuit, Plaintiffs, or Plaintiffs’ Counsel in conjunction with the

6

elimination.

7

4. Fund to Support Athlete Development

8

a. As part of the settlement of the injunctive relief claim, Defendant shall pay

9

$110,000 as a fund (“Fund”) to a non-profit organization to be chosen by

10

Plaintiffs.

11

b. The $110,000 sum shall be paid in care of the chosen non-profit

12

organization within 30 days of the Effective Date.

13

c. The Fund shall be used solely to support club sports at UCD. Subject to

14

that limitation, Plaintiffs shall have the sole discretion to determine how

15

the Fund will be expended. Plaintiffs have exercised that discretion and

16

determined that the Fund will be used for the development of women

17

athletes through the UCD club sports programs.

18

d. Distribution of monies from the Fund shall be pursuant to a process

19

determined by Plaintiffs in conjunction with the non-profit organization.

20

e. To the extent there is any administrative fee or other expense associated

21

with the distribution of the Fund, such fee or expense shall be paid out of

22

the Fund.

23

f. Monies distributed from the Fund are in addition to any monies otherwise

24

allocated to the club sports teams by UCD and may not be used as a basis

25

for denying budget requests or otherwise be determinative of club sports

26

teams budgets.

27

5. Reporting Requirements

28 8
STIPULATED JUDGMENT AND ORDER CASE NO. CIV S-03-2591 FCD EFB

1

a. UCD shall report the following information to Plaintiffs’ Counsel on the

2

dates set forth below during the Compliance Period:

3

i

UCD’s Title IX Compliance Report annually, by September 1st,

4

through the 2019/2020 academic year.

5

ii UCD’s full-time Enrollment Numbers as of November 15, 2014,

6

by December 1, 2014.

7

iii UCD will inform Plaintiffs’ Counsel of which option it chooses

8

under Sections III.3.b., c. and d. above by January 30th of each year

9

specified by this agreement.

10

iv A copy of the notification to students that a women’s varsity team

11

selection process has begun and the announcement of the result of

12

the process in whatever form is used to publicly announce the

13

same information on campus, at the same time it is disseminated

14

on campus.

15

v

UCD’s EADA reports, annually by December 1st, through the

16

2019/2020 academic year.

17

B. Monetary Relief

18

1. Class Representatives

19

Within 30 days of the Effective Date, Defendant shall pay the sum of $8,000 to Plaintiff Brust,

20 $8,000 to Plaintiff Bulala, and $8,000 to Plaintiff Ludwig.

21

2. Attorneys’ Fees and Expenses

22

The Parties have agreed to settle Plaintiffs’ claim for reasonable attorneys’ fees and costs for the

23 sum of $460,000. Plaintiffs will seek approval of the fees and costs in this amount through a motion

24 filed with the Court. Defendant will not oppose the motion for attorneys’ fees and costs. Upon approval

25 by the Court, Defendant shall pay to Plaintiffs’ Counsel the sum of $460,000, representing costs and

26 attorneys’ fees incurred in the prosecution of this case. Except as specified herein, the Parties shall bear

27 their own costs and fees. The attorneys’ fees, costs, and expenses provided for under this Section shall

28 9
STIPULATED JUDGMENT AND ORDER CASE NO. CIV S-03-2591 FCD EFB

1 be paid in lieu of any applicable fee-shifting statute.

2

Attorneys’ fees and expenses will be paid by Defendant within 30 days of the Effective Date.

3 IV. CLASS NOTICE

4

UCD shall provide Notice of the proposed settlement to class members via a posting on the

5 portal for the e-mail system used by University students (“MyUCDavis”) and through publication in the

6 Davis Enterprise and Aggie newspapers. UCD shall be responsible for all costs relating to notice. The

7 Notice shall be substantially similar to the form attached hereto as Exhibit A. Notice will be effected

8 after the Court’s preliminary approval of this Stipulated Judgment at a time mutually agreed upon by the

9 Parties.

10 V. PRESS RELEASE

11

The Parties have issued a joint press release about the settlement, containing mutually agreeable

12 language.

13 V. RESOLUTION OF CLAIMS

14

A. Resolution of Claims by the Class

15

The terms set forth above resolve all of Plaintiffs’ class-based claims covered by this Stipulated

16 Judgment. This Stipulated Judgment resolves all class member claims for injunctive relief based upon

17 the same predicate facts asserted in the Complaint until expiration of the Court’s jurisdiction through the

18 end of the academic year 2019-2020. Class members do not release any individual claims for damages.

19 Such claims shall be dismissed from this case without prejudice.

20

B. Releases by the Class Representatives

21

Plaintiffs Brust, Bulala, and Ludwig shall be deemed to release and shall have released

22 Defendant, Chancellor Vanderhoef and Mr. Warzecka from any and all of Plaintiffs’ individual claims

23 for damages and for injunctive or declaratory relief that are the subject of, included within, and/or arise

24 from this lawsuit, including all claims, liabilities, obligations, demands, actions, and claims under Title

25 IX, 42 U.S.C. § 1983 (“§ 1983”), the Unruh Civil Rights Act, and California public policy. As a

26 condition of settlement Plaintiffs Brust, Bulala and Ludwig shall execute a full release in favor of

27 Defendant, Chancellor Vanderhoef and Mr. Warzecka for all claims referenced above.

28 10
STIPULATED JUDGMENT AND ORDER CASE NO. CIV S-03-2591 FCD EFB

1

C. Mansourian, et al. v. Regents of the University of California

2

Settlement of this action does not, in any way, limit or preclude Plaintiffs in the Mansourian

3 action from pursuing any claims for monetary damages they may have against the Regents or any of the

4 individual defendants in the matter of Mansourian, et al. v. Regents of the University of California, No.

5 S-03-2591-FCD-EFB (E.D. Cal.).

6 VI. RESOLUTION OF DISPUTES

7

In the case of any disputes arising out of or related to any alleged failure to perform in

8 accordance with the terms of this Stipulated Judgment, the Parties agree to meet and confer in good faith

9 to resolve any such dispute. Should a dispute as to any of the terms of the Stipulated Judgment arise, the

10 aggrieved party shall provide the other party notice, and the responding party shall have 30 days to

11 respond before the aggrieved party files any motion with the Court.

12 VII. JURISDICTION

13

A. Continuing Jurisdiction

14

The Court shall maintain continuing jurisdiction over this lawsuit for the length of the

15 Compliance Period, until the end of academic year 2019-2020, for the purpose of overseeing and

16 enforcing the terms herein.

17 VIII. SCOPE AND ENFORCEABILITY OF THE STIPULATED JUDGMENT

18

A. Modification and Termination

19

1. The terms and provisions of this Stipulated Judgment may be amended, modified

20 or expanded only by written Stipulated Judgment of the Parties and their respective attorneys.

21

2. If, for any reason, this Stipulated Judgment fails to become effective, the Parties

22 will be returned to their positions status quo ante with respect to the Action as if this Stipulated

23 Judgment had never been entered into.

24

3. To the extent that the Court makes immaterial changes to the terms of the

25 Stipulated Judgment and/or related documentation, the Parties shall nonetheless be bound to proceed.

26 To the extent that the Court makes material changes, each of the Parties shall have the right to withdraw

27 from this Stipulated Judgment. In such event, the Parties will be returned to their positions status quo

28 11
STIPULATED JUDGMENT AND ORDER CASE NO. CIV S-03-2591 FCD EFB

1 ante as if this Stipulated Judgment had not been entered into.

2

B. Authority to Bind

3

The undersigned each represent and warrants that they are authorized to sign on behalf of, and to

4 bind, Plaintiffs and Defendant, including that this Stipulated Judgment has been approved by the

5 Regents of the University of California.

6

C. Cooperation

7

The Parties agree to cooperate and execute any documents or take any action to effectuate this

8 Stipulated Judgment in a timely and expeditious manner. The Parties agree to cooperate in obtaining

9 Court approval of the Stipulated Judgment and complying with the provisions herein in a timely and

10 expeditious manner.

11

D. Independent Advice of Counsel

12

The Parties represent and declare that in executing the Stipulated Judgment they relied solely

13 upon their own judgment, belief and knowledge, and the advice and recommendations of their own

14 independently selected counsel, concerning the nature, extent and duration of their rights and claims,

15 and that they have not been influenced to any extent whatsoever in executing the same by any

16 representations or statements not expressly contained or referred to in the Stipulated Judgment.

17

E. Sole Consideration

18

The Parties agree that the consideration recited in the Stipulated Judgment is the sole and only

19 consideration for the Stipulated Judgment and no representations, promises or inducements have been

20 made by the Parties, other than the terms of the Stipulated Judgment.

21

F. Counterparts

22

The Stipulated Judgment may be executed in counterparts. Counterparts may be made by

23 facsimile. When each Party has signed and delivered at least one such counterpart, each counterpart

24 shall be deemed an original, and each counterpart taken together shall constitute one and the same

25 Stipulated Judgment. The Stipulated Judgment shall be deemed duly executed, effective, and binding,

26 upon the signing and delivery of the last counterpart by the Parties hereto.

27

28 12
STIPULATED JUDGMENT AND ORDER CASE NO. CIV S-03-2591 FCD EFB

1

SIGNATURES OF THE PARTIES

2

3 DATED: _________________________ ________________________________

4

Kelsey Brust

5 DATED: _________________________ ________________________________

6

Jessica Bulala

7 DATED: ________________________ 8

________________________________ Laura Ludwig

9 DATED: ________________________
10

The Regents of The University of California

11

By: 12

13

Its:

________________________________ ________________________________

14

15

APPROVED AS TO FORM

16 ATTORNEYS FOR PLAINTIFFS:

17 DATED: ________________________ EQUAL RIGHTS ADVOCATES

18

By: ____________________________________

19

NOREEN FARRELL

20 21 DATED: ________________________ 22 23 24

THE STURDEVANT LAW FIRM A Professional Corporation
By: ____________________________________ MONIQUE OLIVIER

25 DATED: ________________________ 26
27
28
STIPULATED JUDGMENT AND ORDER CASE NO. CIV S-03-2591 FCD EFB

EQUITY LEGAL
By: ____________________________________ KRISTEN GALLES
13

1

2 ATTORNEYS FOR DEFENDANT:

3 DATED: ________________________ PORTER SCOTT, P.C.

4

5

By: ____________________________________

6

NANCY SHEEHAN

7

8 JUDGMENT AND ORDER
9

10

11 IT IS SO ADJUDGED AND ORDERED.
12

13 DATED: October 19, 2009
14
15

FRANK C. DAMRELL, JR. UNITED STATES DISTRICT JUDGE

16

17

18

19

20

21

22

23

24

25

26

27

28 14
STIPULATED JUDGMENT AND ORDER CASE NO. CIV S-03-2591 FCD EFB

 
 Case: 2:07-cv-01488-FCD-EFB As of: 07/18/2012 10:31 AM PDT 1 of 12
CIVIL, CLOSED
U.S. District Court Eastern District of California − Live System (Sacramento) CIVIL DOCKET FOR CASE #: 2:07−cv−01488−FCD−EFB

Brust et al v. Regents of the University of California Assigned to: Judge Frank C. Damrell, Jr Referred to: Magistrate Judge Edmund F. Brennan Cause: 28:1343 Violation of Civil Rights
Plaintiff

Date Filed: 07/24/2007 Date Terminated: 10/20/2009 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Kelsey Brust

represented by Monique Olivier Duckworth Peters Lebowitz Olivier LLP 100 Bush Street Suite 1800 San Francisco, CA 94104 415−433−0333 Fax: 415−449−6556 Email: monique@dplolaw.com LEAD ATTORNEY

Kristen Marie Galles Equity Legal 10 Rosecrest Avenue Alexandria, VA 22301 (703) 683−4491 Fax: (703) 683−4636 Email: kgalles@comcast.net

Noreen Ann Farrell Equal Rights Advocates 180 Howard Street Suite 300 San Francisco, CA 94105 (415) 621−0672 Fax: (415) 621−6744 Email: nfarrell@equalrights.org ATTORNEY TO BE NOTICED

Whitney Bryn Huston Sturdevant Law Firm A Professional Corporation 354 Pine Street 4th Floor San Francisco, CA 94104 (415) 489−2550 Fax: (415) 477−2420 Email: whuston@sturdevantlaw.com

Plaintiff Jessica Bulala

represented by Monique Olivier (See above for address) LEAD ATTORNEY

Kristen Marie Galles (See above for address)

Noreen Ann Farrell (See above for address) ATTORNEY TO BE NOTICED

Whitney Bryn Huston

Case: 2:07-cv-01488-FCD-EFB As of: 07/18/2012 10:31 AM PDT 2 of 12

(See above for address)

Plaintiff Laura Ludwig

represented by Monique Olivier (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kristen Marie Galles (See above for address) ATTORNEY TO BE NOTICED

Noreen Ann Farrell (See above for address) ATTORNEY TO BE NOTICED

Whitney Bryn Huston (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Regents of the University of California

represented by Ayse Kuzucuoglu Drinker Biddle &Reath LLP 50 Fremont St., 20th Floor San Francisco, CA 94105 415−591−7500−7598 Fax: 415−591−7510 Email: ayse.kuzucuoglu@dbr.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brooke Ashley Brown Epstein Becker &Green, P.C. One California Street 26th Floor San Francisco, CA 94111 415−398−3500 Fax: 415−398−0955 Email: bbrown@ebglaw.com TERMINATED: 03/27/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Pontus Eugene Burkett Law Office of Derek J. King 2321 P Street Sacramento, CA 95816 (916) 929−1481 Fax: (916) 927−3706 Email: dburkett@porterscott.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
George A. Acero Porter Scott 350 University Avenue, Suite 200 Sacramento, CA 95825 (916) 929−1481 x434 Fax: (916) 927−3706 Email: gacero@porterscott.com TERMINATED: 03/27/2009

Case: 2:07-cv-01488-FCD-EFB As of: 07/18/2012 10:31 AM PDT 3 of 12

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael William Pott Porter Scott 350 University Avenue Suite 200 P.O. Box 255428 Sacramento, CA 95825 (916) 929−1481 x333 Fax: (916) 927−3706 Email: mpott@porterscott.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nancy Joan Sheehan Porter Scott, PC 350 University Avenue Suite 200 Sacramento, CA 95825 916−929−1481 x318 Fax: 916−927−3706 Email: nsheehan@porterscott.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Larry Vanderhoef

represented by David Pontus Eugene Burkett (See above for address) LEAD ATTORNEY

George A. Acero (See above for address) TERMINATED: 03/27/2009 LEAD ATTORNEY

Michael William Pott (See above for address) LEAD ATTORNEY

Nancy Joan Sheehan (See above for address) LEAD ATTORNEY

Defendant Greg Warzecka

represented by David Pontus Eugene Burkett (See above for address) LEAD ATTORNEY

George A. Acero (See above for address) TERMINATED: 03/27/2009 LEAD ATTORNEY

Michael William Pott (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nancy Joan Sheehan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:07-cv-01488-FCD-EFB As of: 07/18/2012 10:31 AM PDT 4 of 12

Defendant
Eagle Forum Education &Legal Defense Fund

represented by Lawrence John Joseph Law Office of Lawrence J. Joseph 1250 Connecticut Avenue, NW Suite 200 Washington, DC 20036 202−669−5135 Fax: 202−318−2254 Email: ljoseph@larryjoseph.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 07/24/2007 07/24/2007 07/24/2007 07/24/2007 07/24/2007
07/24/2007 07/25/2007
08/03/2007 08/09/2007 08/09/2007 09/20/2007
09/20/2007

# Docket Text
1 COMPLAINT with Jury Demand against all Defendants by Kelsey Brust, Jessica Bulala, Laura Ludwig. Attorney Olivier, Monique added.(Olivier, Monique) Modified on 7/24/2007 (Engbretson, K.). (Entered: 07/24/2007)
2 CIVIL COVER SHEET by Kelsey Brust, Jessica Bulala, Laura Ludwig (Olivier, Monique) (Entered: 07/24/2007)
3 NOTICE of RELATED CASE S−03−CV−2591 by Kelsey Brust, Jessica Bulala, Laura Ludwig. (Olivier, Monique) (Entered: 07/24/2007)
RECEIPT number 201 14501 for $350.00 for New Civil Filing Fee from Sarah Camiso. (Engbretson, K.) (Entered: 07/24/2007)
5 SUMMONS ISSUED as to *Larry Vanderhoef, Greg Warzecka, Regents of the University of California* with answer to complaint due within *20* days. Attorney *Monique Olivier* *The Sturdevant Law Firm* *475 Sansome Street, Suite 1750* *San Francisco, CA 94111*. (Engbretson, K.) (Entered: 07/24/2007)
6 CIVIL NEW CASE DOCUMENTS ISSUED; (Attachments: # 1 Consent Forms # 2 VDRP Forms) (Engbretson, K.) (Entered: 07/24/2007)
7 RELATED CASE ORDER signed by Judge Frank C. Damrell Jr. on 7/25/07. The Action denominated 2:07−cv−1488 FCD KJM shall be reassigned to Magistrate Judge Edmund F. Brennan for all further proceedings. The Caption on documents filed in the reassigned case shall be shown as 2:07−cv−1488 FCD EFB. The Clerk is directed to make appropriate adjustment in the assignment of civi/criminal cases to compensate for this reassignment.(Mena−Sanchez, L) (Entered: 07/25/2007)
8 CERTIFICATE of SERVICE by Kelsey Brust, Jessica Bulala, Laura Ludwig. Proof of Service of Summons on Defendant Regents of The University of California (Olivier, Monique) (Entered: 08/03/2007)
9 WAIVER of SERVICE RETURNED EXECUTED by Kelsey Brust, Jessica Bulala, Laura Ludwig. Larry Vanderhoef waiver sent on 7/27/2007, answer due 9/25/2007. (Olivier, Monique) (Entered: 08/09/2007)
10 WAIVER of SERVICE RETURNED EXECUTED by Kelsey Brust, Jessica Bulala, Laura Ludwig. Greg Warzecka waiver sent on 7/27/2007, answer due 9/25/2007. (Olivier, Monique) (Entered: 08/09/2007)
11 STIPULATION and PROPOSED ORDER Stipulation to Extend Time to File Responsive Pleading and to File Joint Status Report, Including F.R.C.P. 26(f) Discovery Plan by Larry Vanderhoef, Greg Warzecka, Regents of the University of California. Attorney Acero, George A. added. (Acero, George) (Entered: 09/20/2007)
12 PROPOSED ORDER [Proposed] Order for Stipulation to Extend Time to File Responsive Pleading and to File Joint Status Report, Including F.R.C.P. 26(f) Discovery Plan by Larry Vanderhoef, Greg Warzecka, Regents of the University of California. (Acero, George) (Entered: 09/20/2007)

Case: 2:07-cv-01488-FCD-EFB As of: 07/18/2012 10:31 AM PDT 5 of 12

09/21/2007 10/17/2007 10/17/2007 10/19/2007
10/19/2007 10/19/2007 10/23/2007
10/26/2007 10/26/2007 10/26/2007 10/26/2007 10/26/2007 10/26/2007 10/26/2007 10/29/2007 10/31/2007

13 ORDER signed by Judge Frank C. Damrell Jr. on 9/21/07. Defendants must file a responsive pleading on or before 10/26/07. The parties shall file a joint status report on or before 11/16/07.(Price, M) (Entered: 09/21/2007)
14 EX PARTE APPLICATION to Extend Page Limit to Defendants' Rule 12(b)(6) Motion by Larry Vanderhoef, Greg Warzecka, Regents of the University of California for Extension of Page Limit to Defendants' Rule 12(b)(6) Motion. (Acero, George) (Entered: 10/17/2007)
15 PROPOSED ORDER to Extend Page Limit to Defendants' 12(b)(6) Motion by Larry Vanderhoef, Greg Warzecka, Regents of the University of California. (Acero, George) (Entered: 10/17/2007)
16 ORDER regarding 14 EX PARTE APPLICATION signed by Judge Frank C. Damrell Jr. on 10/18/07 ORDERING that Defendants REGENTS OF THE UNIVERSITY OF CALIFORNIA, LARRY VANDERHOEF, and GREG WARZECKA shall be permitted to file their Rule 12(b)(b) Motion in excess of 20 pages, but not to exceed 24 pages.(Dillon, M) Modified on 10/19/2007 (Dillon, M). (Entered: 10/19/2007)
17 EX PARTE APPLICATION for an Extension to Page Limits for Plaintiff's Opposition to Defendants' Rule 12(b)(6) Motion by Kelsey Brust, Jessica Bulala, Laura Ludwig . (Olivier, Monique) Modified on 10/22/2007 (Waggoner, D). (Entered: 10/19/2007)
18 PROPOSED ORDER [Proposed] Order Granting Ex Parte Application for an Extension of Page Limits for Plaintiff's Opposition to Defendants' Rule 12(b)(6) Motion re 17 Ex Parte Application, by Kelsey Brust, Jessica Bulala, Laura Ludwig. (Olivier, Monique) (Entered: 10/19/2007)
19 ORDER signed by Judge Frank C. Damrell Jr. on 10/23/07. 17 Ex Parte Application filed by Jessica Bulala, Kelsey Brust, Laura Ludwig − GRANTED. Pltfs' shall be permitted to file their Opposition to Defendants Rule 12(b)(6) Motion in excess of 20 pages, but not to exceed 24 pages.(Price, M) (Entered: 10/23/2007)
20 MOTION to DISMISS pursuant to Rule 12(b)(6) by Larry Vanderhoef, Greg Warzecka, Regents of the University of California.Motion Hearing set for 12/14/2017 at 10:00 AM in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr.. (Acero, George) Modified on 10/29/2007 (Yin, K). (Entered: 10/26/2007)
21 REQUEST for JUDICIAL NOTICE w/ Exhibits A−C by Larry Vanderhoef, Greg Warzecka, Regents of the University of California. (Acero, George) Modified on 10/29/2007 (Yin, K). (Entered: 10/26/2007)
22 [DISREGARD, SEE 27 EXHIBITS W/ TITLE PAGE] EXHIBITS D−L by Larry Vanderhoef, Greg Warzecka, Regents of the University of California. (Acero, George) Modified on 10/29/2007 (Yin, K). (Entered: 10/26/2007)
23 MEMORANDUM in SUPPORT of 20 Motion to Dismiss. (Acero, George) Modified on 10/29/2007 (Yin, K). (Entered: 10/26/2007)
24 DECLARATION of George A. Acero in Support of Defendants' 20 Motion to Dismiss. (Acero, George) Modified on 10/29/2007 (Yin, K). (Entered: 10/26/2007)
25 DECLARATION of Greg Warzecka in Support Defendants' 20 Motion to Dismiss. (Acero, George) Modified on 10/29/2007 (Yin, K). (Entered: 10/26/2007)
26 DECLARATION of Dennis Shimek in Support of Defendants' 20 Motion to Dismiss. (Acero, George) Modified on 10/29/2007 (Yin, K). (Entered: 10/26/2007)
27 EXHIBIT D−L w/ title page to Dfts' 21 Request for Judicial Notice. (Acero, George) Modified on 10/29/2007 (Yin, K). (Entered: 10/29/2007)
28 MINUTE ORDER: from CRD M. Price for Judge Frank C. Damrell Jr. on 10/31/07. In light of the pending motion to dismiss set for hearing on 12/14/07 the portion of the order filed 9/21/07 which required a joint status report be filed by 11/16/07 is VACATED. The parties shall submit a joint status report, if necessary, within thirty (30) days after the resolution of the motion to dismiss. (TEXT ONLY)

Case: 2:07-cv-01488-FCD-EFB As of: 07/18/2012 10:31 AM PDT 6 of 12

10/31/2007 11/30/2007 11/30/2007
12/07/2007 12/07/2007
12/07/2007 12/12/2007
12/21/2007 12/21/2007 01/09/2008 01/09/2008 01/09/2008 01/09/2008 01/09/2008 01/10/2008 01/11/2008 03/19/2008

(Price, M) (Entered: 10/31/2007)
29 NOTICE of APPEARANCE by Kristen Marie Galles on behalf of Kelsey Brust, Jessica Bulala, Laura Ludwig. Attorney Galles, Kristen Marie added. (Galles, Kristen) (Entered: 10/31/2007)
30 MEMORANDUM/RESPONSE in OPPOSITION. to Defendants' Rule 12(b)(6) Motion (Olivier, Monique) (Entered: 11/30/2007)
31 OPPOSITION by Plaintiffs Kelsey Brust, Jessica Bulala, Laura Ludwig to 30 Memorandum/Response in Opposition to Motion. Plaintiffs' Opposition to Defendant's Request for Judicial Notice in Support of Rule 12(b)(6) Motion (Olivier, Monique) (Entered: 11/30/2007)
32 REPLY to RESPONSE to MOTION re 20 Motion to Dismiss. Defendants Rule 12(b)(6) Motion (Acero, George) (Entered: 12/07/2007)
33 MINUTE ORDER: from CRD M. Price for Judge Frank C. Damrell Jr. on 12/7/07. Deft's Motion to Dismiss 20 is MOTION SUBMITTED: without oral argument. The hearing set for 12/14/07 is VACATED. The court shall issue a written order. (TEXT ONLY) (Price, M) (Entered: 12/07/2007)
34 REPLY to RESPONSE to MOTION re 20 Motion to Dismiss. Re: Request for Judicial Notice In Support of Defendants' Rule 12(b)(6) Motion (Acero, George) (Entered: 12/07/2007)
35 MEMORANDUM AND ORDER signed by Judge Frank C. Damrell Jr. on 12/11/07. Defts 20 motion to dismiss is GRANTED in part and DENIED in part as follows: Deft UCDs motion to dismiss pltfs claim for relief under Title IX based upon a theory of ineffective accommodation − DENIED; pltfs claim for relief under Title IX based upon a theory of unequal financial assistance − DENIED as MOOT; pltfs claims for punitive damages under Title IX − GRANTED; pltfs claims brought pursuant to 42 U.S.C. section 1983 − GRANTED and (5) as to pltfs state law claims − GRANTED. (Price, M) (Entered: 12/12/2007)
36 ANSWER to COMPLAINT by Regents of the University of California. Attorney Sheehan, Nancy Joan added.(Sheehan, Nancy) (Entered: 12/21/2007)
37 DEMAND for TRIAL by JURY by Regents of the University of California. (Sheehan, Nancy) (Entered: 12/21/2007)
38 NOTICE of APPEARANCE by Nancy Joan Sheehan on behalf of Regents of the University of California. (Sheehan, Nancy) (Entered: 01/09/2008)
39 STIPULATION and PROPOSED ORDER Regarding Use of Discovery from Related Action by Regents of the University of California. (Sheehan, Nancy) (Entered: 01/09/2008)
40 TO BE DISREGARDED PURSUANT TO NOTICE FILED 1/9/08. JOINT STATUS REPORT by Regents of the University of California. (Sheehan, Nancy) Modified on 1/9/2008 (Price, M). (Entered: 01/09/2008)
41 NOTICE by Regents of the University of California. Notice of Errata (Sheehan, Nancy) (Entered: 01/09/2008)
42 JOINT STATUS REPORT by Regents of the University of California. (Sheehan, Nancy) (Entered: 01/09/2008)
43 STIPULATION and ORDER REGARDING USE OF DISCOVERY FROM RELATED ACTION signed by Judge Frank C. Damrell Jr. on 1/9/08. (Dillon, M) (Entered: 01/10/2008)
44 NOTICE of CHANGE of ADDRESS by Monique Olivier. (Olivier, Monique) (Entered: 01/11/2008)
45 STATUS ORDER signed by Judge Frank C. Damrell, Jr on 3/19/08 ORDERING Discovery set for 1/30/2009, Designation of Expert Witnesses due by 2/27/2009, last date to hear all dispositive motions will be no later 6/26/2009, Final Pretrial Conference set for 8/28/2009 at 01:30 PM in Courtroom 2 (FCD) before Judge

Case: 2:07-cv-01488-FCD-EFB As of: 07/18/2012 10:31 AM PDT 7 of 12

04/01/2008 04/04/2008
04/04/2008
07/30/2008 08/05/2008 08/05/2008 08/14/2008 08/14/2008 08/14/2008 08/14/2008 08/14/2008 08/14/2008 08/14/2008

Frank C. Damrell Jr.., Jury Trial set for 10/27/2009 at 09:00 AM in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr.. (Carlos, K) (Entered: 03/19/2008)
46 OBJECTIONS by Plaintiffs Kelsey Brust, Jessica Bulala, Laura Ludwig Joint Objection to Status (Pretrial Scheduling) Order (Olivier, Monique) Modified on 4/2/2008 (Price, M). (Entered: 04/01/2008)
47 MINUTE ORDER: from CRD M. Price for Judge Frank C. Damrell, Jr on 04/04/08. The court OVERRULES the parties 46 Objections made as to the number of depositions to be taken. Pursuant to Local Rules 72−302(c)(1) and 37−251 all discovery disputes should be brought before the assigned magistrate judge. The court shall modify the scheduling of the expert witness discovery and shall issue an amended Status (Pretrial Scheduling) Order in conjunction with this minute order. (Price, M) (Entered: 04/04/2008)
48 AMENDED SCHEDULING ORDER: signed by Judge Frank C. Damrell, Jr on 04/04/08. Designation of Expert Witnesses due by 9/2/2008, rebuttal expert designations 10/15/08 and all expert discovery closes by 2/28/09. Discovery due by 1/30/2009. Dispositive Motion to be heard no later than 6/26/2009. Final Pretrial Conference set for 8/28/2009 at 01:30 PM in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr. Jury Trial set for 10/29/2009 at 09:00 AM in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr. (Price, M) (Entered: 04/04/2008)
49 MOTION to COMPEL Discovery Responses as to Plaintiffs Kelsey Brust, Jessica Bulala and Laura Ludwig by Regents of the University of California. Attorney Kuzucuoglu, Ayse added. Motion Hearing set for 8/27/2008 at 10:00 AM in Courtroom 25 (EFB) before Magistrate Judge Edmund F. Brennan. (Kuzucuoglu, Ayse) (Entered: 07/30/2008)
50 MINUTE ORDER by CRD: Due to the Court's unavailability, the hearing re:Deft's Motion to Compel Discovery Responses 49 previously set for 08/27/08 is CONTINUED to 9/17/2008 at 10:00 AM in Courtroom 25 (EFB) before Magistrate Judge Edmund F. Brennan. (Text only entry) (Cannarozzi, N) (Entered: 08/05/2008)
51 BRIEFING ORDER re 49 MOTION to COMPEL Discovery Responses as to Plaintiffs Kelsey Brust, Jessica Bulala and Laura Ludwig filed by Regents of the University of California. Signed by Magistrate Judge Edmund F. Brennan on 8/5/08. (Hinkle, T) (Entered: 08/05/2008)
52 MOTION to CERTIFY CLASS by Kelsey Brust, Jessica Bulala, Laura Ludwig. Motion Hearing set for 10/03/2008 at 10:00 AM in Courtroom 2 (FCD) before Judge Frank C. Damrell, Jr. (Farrell, Noreen) Modified on 8/15/2008 (Benson, A). (Entered: 08/14/2008)
53 MEMORANDUM in support of 52 Motion to Certify Class. (Farrell, Noreen) Modified on 8/15/2008 (Benson, A). (Entered: 08/14/2008)
54 EVIDENCE in support of 52 Motion for Class Certification by Kelsey Brust, Jessica Bulala, Laura Ludwig. (Farrell, Noreen) Modified on 8/15/2008 (Benson, A). (Entered: 08/14/2008)
55 EXHIBIT Volume 1 by Kelsey Brust, Jessica Bulala, Laura Ludwig in support of 52 Motion to Certify Class. (Attachments: # 1 Exhibit A − A:18, # 2 Exhibit A:19 − A:23, # 3 Exhibit A:24 − A:34)(Farrell, Noreen) Modified on 8/15/2008 (Benson, A). (Entered: 08/14/2008)
56 EXHIBIT Volume 2 of Evidence Submitted by Plaintiffs in Support of their Motion for Class Certification by Kelsey Brust, Jessica Bulala, Laura Ludwig re 52 MOTION to CERTIFY CLASS. (Farrell, Noreen) (Entered: 08/14/2008)
57 APPENDIX on Non−Published Authority by Kelsey Brust, Jessica Bulala, Laura Ludwig in support of 52 Motion to Certify Class. (Farrell, Noreen) Modified on 8/15/2008 (Benson, A). (Entered: 08/14/2008)
58 PROPOSED ORDER re 52 Motion to Certify Class (Farrell, Noreen) Modified on 8/15/2008 (Benson, A). (Entered: 08/14/2008)

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08/22/2008 08/25/2008
09/10/2008 09/10/2008 09/10/2008 09/10/2008 09/10/2008 09/10/2008 09/10/2008 09/10/2008 09/10/2008 09/11/2008 09/12/2008
09/12/2008 09/12/2008

59 STIPULATION and PROPOSED ORDER Request to Modify Status (Pretrial) Scheduling Order by Larry Vanderhoef, Greg Warzecka, Regents of the University of California. Attorney Pott, Michael William added. (Pott, Michael) (Entered: 08/22/2008)
60 STIPULATION and ORDER MODIFYING 48 STATUS (PRETRIAL SCHEDULING) ORDER signed by Judge Frank C. Damrell, Jr. on 08/22/08 ORDERING that Designation of Expert Witnesses is now due by 11/03/08; Disclosure of supplemental list of expert witnesses and accompanying written reports for persons who will express an opinion on a subject covered by an expert designated by an adverse party, if the party supplementing an expert witness designation has not previously retained an expert to testify on that subject due by 12/15/08. The disclosure of experts and supplemental experts will be made based in conformance with the language contained in the amended (pretrial scheduling) order. (Benson, A) (Entered: 08/25/2008)
61 OPPOSITION by Larry Vanderhoef, Greg Warzecka, Regents of the University of California. Attorney Sheehan, Nancy Joan added. Memorandum of Points and Authorities in Support of Defendant's Opposition to Plaintiff's Motion for Class Certification (Sheehan, Nancy) (Entered: 09/10/2008)
62 EXHIBIT Index of Exhibits in Support of Defendant's Opposition to Plaintiff's Motion for Class Certification. (Sheehan, Nancy) (Entered: 09/10/2008)
63 EXHIBIT K through O in Support of Defendant's Opposition to Plaintiff's Motion for Class Certification. (Sheehan, Nancy) (Entered: 09/10/2008)
64 EXHIBIT P thorugh Q in Support of Defendant's Opposition to Plaintiff's Motion for Class Certification. (Sheehan, Nancy) (Entered: 09/10/2008)
65 EXHIBIT R through U in Support of Defendant's Opposition to Plaintiffs' Motion for Class Certification. (Sheehan, Nancy) (Entered: 09/10/2008)
66 EXHIBIT V through BB in Support of Defendant's Opposition to Plaintiffs' Motion for Class Certification. (Sheehan, Nancy) (Entered: 09/10/2008)
67 EXHIBIT A through J in Support of Defendant's Opposition to Plaintiffs' Motion for Class Certification. (Sheehan, Nancy) (Entered: 09/10/2008)
68 EXHIBIT Appendix of Authority [PART I] In Support of Defendant's Opposition to Plaintiffs' Motion for Class Certification. (Sheehan, Nancy) (Entered: 09/10/2008)
69 EXHIBIT Appendix of Authority [PART II] in Support of Defendant's Opposition to Plaintiffs' Motion for Class Certification. (Sheehan, Nancy) (Entered: 09/10/2008)
70 EXHIBIT Amended Exhibits B + G in Support of Defendant's Opposition to Plaintiffs' Motion for Class Certification. (Sheehan, Nancy) (Entered: 09/11/2008)
71 MINUTE ORDER by CRD:Due to the parties failure to file a joint stipulation relative to the discovery motion filed July 30, 2008 49 , the requirements of which were set forth in this courts briefing order filed August 5, 2008 51 , the motion is hereby VACATED from this courts September 17, 2008 law and motion calendar and CONTINUED to 10/8/2008 at 10:00 AM in Courtroom 25 (EFB) before Magistrate Judge Edmund F. Brennan. The motion will be deemed withdrawn upon notice from the moving party or failure to file a joint stipulation five days before the hearing as set forth in the courts prior briefing order. (Text only entry) (Cannarozzi, N) (Entered: 09/12/2008)
72 AMENDED MINUTE ORDER by CRD re 71 . The motion hearing re: 49 is RESET from 10/08/08 to 10/15/2008 at 10:00 AM in Courtroom 25 (EFB) before Magistrate Judge Edmund F. Brennan. (Text only entry) (Cannarozzi, N) (Entered: 09/12/2008)
73 EX PARTE APPLICATION by Kelsey Brust, Jessica Bulala, Laura Ludwig for an Extension to Page Limits for Plaintiffs' Reply Brief on the Motion for Class Certification. (Attachments: # 1 Proposed Order)(Olivier, Monique) (Entered: 09/12/2008)

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09/15/2008 09/26/2008
09/29/2008 09/29/2008 09/29/2008 09/30/2008 10/03/2008 10/06/2008
10/08/2008 10/13/2008 10/14/2008 10/15/2008 10/24/2008
11/13/2008 11/17/2008

74 ORDER signed by Judge Frank C. Damrell, Jr on 9/15/08 ORDERING pltfs Brust, Ludwig and Bulala are permitted to file their Reply Brief on the Motion to Class Certification in excess of 10 pages, but not to exceed 15 pages. (Carlos, K) (Entered: 09/15/2008)
75 REPLY by Kelsey Brust in Support of 52 Motion for Class Certification. (Attachments: # 1 Declaration of Monique Olivier ISO Motion for Class Certification, # 2 Appendix of Non−Published Authority ISO Plaintiffs' Motion)(Olivier, Monique) Modified on 10/1/2008 (Dillon, M). (Entered: 09/26/2008)
76 REPLY by Larry Vanderhoef, Greg Warzecka, Regents of the University of California to RESPONSE. Attorney Burkett, David Pontus Eugene added. Defendant's Response to Plaintiffs' Reply to Opposition to Class Certification (Burkett, David) (Entered: 09/29/2008)
77 DECLARATION of Supplemental Declaration of Amy Cole Regarding Typographical Error in re 52 Motion to Certify Class. (Burkett, David) (Entered: 09/29/2008)
78 PROPOSED ORDER. Regarding Defendant's Response to Plaintiffs' Reply to Opposition to Class Certification (Burkett, David) (Entered: 09/29/2008)
79 MINUTE ORDER by CRD M. Krueger for Judge Frank C. Damrell, Jr. on 9/30/08: Plaintiffs' Motion to Certify Class 52 is hereby SUBMITTED. The hearing set for 10/3/08 is VACATED. The Court will issue a written order. (TEXT ONLY) (Krueger, M) (Entered: 09/30/2008)
80 SUPPLEMENTAL DECLARATION of Whitney Huston in SUPPORT of 52 Motion to Certify Class. Attorney Huston, Whitney Bryn added. (Huston, Whitney) Modified on 10/9/2008 (Mena−Sanchez, L). (Entered: 10/03/2008)
81 MINUTE ORDER by CRD: Due to the unavailability of the Court, Deft's Motion to Compel Discovery Responses 49 currently set for hearing on 10/15/08 is CONTINUED to 10/22/2008 at 10:00 AM in Courtroom 25 (EFB) before Magistrate Judge Edmund F. Brennan. The parties are reminded to comply with the Court's previously issued Order 51 regarding the joint statement. (Text only entry) (Cannarozzi, N) (Entered: 10/06/2008)
82 WITHDRAWAL of 49 MOTION to COMPEL Discovery Responses as to Plaintiffs Kelsey Brust, Jessica Bulala and Laura Ludwig by Larry Vanderhoef, Greg Warzecka, Regents of the University of California. (Burkett, David) (Entered: 10/08/2008)
83 DECLARATION of David P.E. Burkett in (Supplemental) Opposition to 52 Motion to Certify Class. (Burkett, David) (Entered: 10/13/2008)
84 STIPULATION and PROPOSED ORDER to Modify the Amended Status (Pretrial Scheduling) Order by Kelsey Brust, Jessica Bulala, Laura Ludwig. (Olivier, Monique) (Entered: 10/14/2008)
85 STIPULATION and ORDER to modify the amended pretrial scheduling order signed by Judge Frank C. Damrell, Jr on 10/14/08: Designation of Expert Witnesses due by 11/21/2008. Disclosure of supplemental list of expert witnesses deadline shall be 12/23/08.(Manzer, C) (Entered: 10/15/2008)
86 MEMORANUM AND ORDER signed by Judge Frank C. Damrell, Jr on 10/23/2008 GRANTING 52 Motion to Certify Class. The court appoints Kelsey Brust, Laura Ludwig, and Jessica Bulala as class representatives.The court appoints Equal Rights Advocates, The Sturdevant Law Firm, and Equity Legal as classcounsel. (Streeter, J) (Entered: 10/24/2008)
87 STIPULATION and PROPOSED ORDER to modify the amended status (pretrial scheduling) order by Kelsey Brust, Jessica Bulala, Laura Ludwig. (Olivier, Monique) Modified on 11/20/2008 (Engbretson, K.). (Entered: 11/13/2008)
88 STIPULATION and ORDER to modify the amended pretrial scheduling order signed by Judge Frank C. Damrell, Jr on 11/17/08: Designation of Expert Witnesses due by 12/19/2008. Disclosure of supplemental list of expert witnesses

Case: 2:07-cv-01488-FCD-EFB As of: 07/18/2012 10:31 AM PDT 10 of 12

12/19/2008 12/19/2008 01/09/2009 03/05/2009 03/06/2009
03/26/2009 04/23/2009 04/24/2009 06/22/2009 06/23/2009 06/30/2009
06/30/2009

deadline shall be 01/23/09. Discovery due by 3/27/2009. Dispositive Motion due by 7/10/2009. (Manzer, C) (Entered: 11/17/2008)
89 WITNESS LIST by Larry Vanderhoef, Greg Warzecka, Regents of the University of California.(Sheehan, Nancy) (Entered: 12/19/2008)
90 DESIGNATION/DISCLOSURE of EXPERT WITNESS by Kelsey Brust, Jessica Bulala, Laura Ludwig. (Attachments: # 1 Exhibit 1 − Lopiano Report, # 2 Exhibit 2 − Yiamouyiannis Report, # 3 Exhibit Yiamouyiannis Report Exs 1−9, # 4 Exhibit Yiamouyiannis Report Ex 10a, # 5 Exhibit Yiamouyiannis Report Ex 10b)(Olivier, Monique) (Entered: 12/19/2008)
91 NOTICE OF CHANGE IN COUNSEL by Kelsey Brust, Jessica Bulala, Laura Ludwig. (Olivier, Monique) (Entered: 01/09/2009)
92 STIPULATION and PROPOSED ORDER to modify Amended Status (Pretrial Scheduling) Order by plaintiffs. (Olivier, Monique) Modified on 3/11/2009 (Marciel, M). (Entered: 03/05/2009)
93 STIPULATION and ORDER Modifying Scheduling Order signed by Judge Frank C. Damrell, Jr. on 3/6/2009 (ORDER MODIFIED FROM SUBMITTED VERSION): Designation of Expert Witnesses due by 2/13/2009, with Supplemental Disclosures due by 3/20/2009. Expert Discovery cut−off is EXTENDED to 5/22/2009. Dispositive Motions shall be heard by 9/4/2009. The Final Pretrial Conference is RESET for 10/30/2009 at 2:30 PM in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr., and the Joint Final Pretrial Conference Statement is due by 10/16/2009. The Jury Trial is RESET for 1/26/2010 at 9:00 AM in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr. (Krueger, M) (Entered: 03/06/2009)
94 NOTICE of Change of Counsel by Larry Vanderhoef, Greg Warzecka, Regents of the University of California. (Sheehan, Nancy) (Entered: 03/26/2009)
95 STIPULATION and PROPOSED ORDER to Modify the Amended Status (Pre−Trial) Scheduling Order by Larry Vanderhoef, Greg Warzecka, Regents of the University of California. (Sheehan, Nancy) Modified on 4/28/2009 (Engbretson, K.). (Entered: 04/23/2009)
96 STIPULATION and ORDER 95 signed by Judge Frank C. Damrell, Jr on 4/23/2009 GRANTING to Modify the Amended Status (Pre−Trial) Scheduling Order, and extending the Merits and Experts Discovery Cut−Off dates to both be 7/24/09. All other dates to remain the same. (Matson, R) Modified on 4/24/2009 (Krueger, M). (Entered: 04/24/2009)
97 JOINT NOTICE of SETTLEMENT and [proposed] Order re Briefing Schedule for Preliminary Approval by Kelsey Brust, Jessica Bulala, Laura Ludwig, Regents of the University of California. Filing Deadline: 6/30/2009. (Olivier, Monique) Modified on 6/23/2009 (Mena−Sanchez, L). (Entered: 06/22/2009)
98 ORDER signed by Judge Frank C. Damrell, Jr. on 6/23/09 ORDERING that the Joint Motion for Preliminary Approval Papers are to be filed no later than 6/30/09; and hearing on the Joint Motion for Preliminary Approval on 8/21/09, at 10:00 a.m. (Engbretson, K.) (Entered: 06/23/2009)
99 MOTION for JUDGMENT Notice of Joint Motion and Motion for Order: (1) Preliminarily Approving the Stipulated Judgment, (2) Authorizing Distribution of Notice of Settlement, and (3) Setting a Schedule for the Final Approval Process by Kelsey Brust, Jessica Bulala, Laura Ludwig. Motion Hearing set for 8/21/2009 at 10:00 AM in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr.. (Olivier, Monique) (Entered: 06/30/2009)
100 MEMORANDUM by Kelsey Brust, Jessica Bulala, Laura Ludwig in SUPPORT of 99 MOTION for JUDGMENT Notice of Joint Motion and Motion for Order: (1) Preliminarily Approving the Stipulated Judgment, (2) Authorizing Distribution of Notice of Settlement, and (3) Setting a Schedule for the Final Approval Process MOTION for JUDGMENT Notice of Joint Motion and Motion for Order: (1) Preliminarily Approving the Stipulated Judgment, (2) Authorizing Distribution of Notice of Settlement, and (3) Setting a Schedule for the Final Approval Process.

Case: 2:07-cv-01488-FCD-EFB As of: 07/18/2012 10:31 AM PDT 11 of 12

06/30/2009 06/30/2009 06/30/2009 06/30/2009 06/30/2009 08/11/2009 09/28/2009 09/30/2009

(Olivier, Monique) (Entered: 06/30/2009)
101 DECLARATION of Monique Olivier in SUPPORT OF 99 MOTION for JUDGMENT Notice of Joint Motion and Motion for Order: (1) Preliminarily Approving the Stipulated Judgment, (2) Authorizing Distribution of Notice of Settlement, and (3) Setting a Schedule for the Final Approval Process MOTION for JUDGMENT Notice of Joint Motion and Motion for Order: (1) Preliminarily Approving the Stipulated Judgment, (2) Authorizing Distribution of Notice of Settlement, and (3) Setting a Schedule for the Final Approval Process. (Olivier, Monique) (Entered: 06/30/2009)
102 DECLARATION of NOREEN A. FARRELL in SUPPORT OF 99 MOTION for JUDGMENT Notice of Joint Motion and Motion for Order: (1) Preliminarily Approving the Stipulated Judgment, (2) Authorizing Distribution of Notice of Settlement, and (3) Setting a Schedule for the Final Approval Process MOTION for JUDGMENT Notice of Joint Motion and Motion for Order: (1) Preliminarily Approving the Stipulated Judgment, (2) Authorizing Distribution of Notice of Settlement, and (3) Setting a Schedule for the Final Approval Process. (Olivier, Monique) (Entered: 06/30/2009)
103 DECLARATION of DINA R. LASSOW in SUPPORT OF 99 MOTION for JUDGMENT Notice of Joint Motion and Motion for Order: (1) Preliminarily Approving the Stipulated Judgment, (2) Authorizing Distribution of Notice of Settlement, and (3) Setting a Schedule for the Final Approval Process MOTION for JUDGMENT Notice of Joint Motion and Motion for Order: (1) Preliminarily Approving the Stipulated Judgment, (2) Authorizing Distribution of Notice of Settlement, and (3) Setting a Schedule for the Final Approval Process. (Olivier, Monique) (Entered: 06/30/2009)
104 DECLARATION of NANCY J. SHEEHAN in SUPPORT OF 99 MOTION for JUDGMENT Notice of Joint Motion and Motion for Order: (1) Preliminarily Approving the Stipulated Judgment, (2) Authorizing Distribution of Notice of Settlement, and (3) Setting a Schedule for the Final Approval Process MOTION for JUDGMENT Notice of Joint Motion and Motion for Order: (1) Preliminarily Approving the Stipulated Judgment, (2) Authorizing Distribution of Notice of Settlement, and (3) Setting a Schedule for the Final Approval Process. (Olivier, Monique) (Entered: 06/30/2009)
105 PROPOSED ORDER [Proposed] Order re 99 MOTION for JUDGMENT Notice of Joint Motion and Motion for Order: (1) Preliminarily Approving the Stipulated Judgment, (2) Authorizing Distribution of Notice of Settlement, and (3) Setting a Schedule for the Final Approval Process MOTION for JUDGMENT Notice of Joint Motion and Motion for Order: (1) Preliminarily Approving the Stipulated Judgment, (2) Authorizing Distribution of Notice of Settlement, and (3) Setting a Schedule for the Final Approval Process. (Olivier, Monique) (Entered: 06/30/2009)
106 ORDER signed by Judge Frank C. Damrell, Jr on 8/11/2009 Preliminarily APPROVING the Stipulated Judgment, Authorizing Distribution of Notice of Settlement, and Setting a Schedule for the Final Approval Process 99 . The Fairness Hearing is SET for 10/16/2009 at 10:00 AM in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr. (Krueger, M) (Entered: 08/11/2009)
107 MOTION Leave to File Amicus Brief by Eagle Forum Education &Legal Defense Fund. Attorney Joseph, Lawrence John added. Motion Hearing set for 11/13/2009 at 10:00 AM in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr. (Attachments: # 1 Corporate Disclosure, # 2 Proposed Order , # 3 Proposed Amicus Brief)(Joseph, Lawrence) (Entered: 09/28/2009)
108 ORDER signed by Judge Frank C. Damrell, Jr on 9/29/09 ORDERING that the 107 motion to file the amicus curiae brief is GRANTED and the Clerk is ordered file the amicus curiae brief that accompanied the motion on the docket. The parties may file a response, either jointly or separately, not to exceed fifteen (15) pages within fourteen (14) days of the date of this order. IT IS FURTHER ORDERED that oral argument on the issue of jurisdiction as raised by the Amicus Curiae will not be necessary.(Duong, D) Modified on 10/1/2009 (Duong, D). (Entered: 09/30/2009)

Case: 2:07-cv-01488-FCD-EFB As of: 07/18/2012 10:31 AM PDT 12 of 12

09/30/2009 10/09/2009
10/09/2009 10/09/2009 10/09/2009 10/09/2009 10/09/2009 10/09/2009 10/09/2009 10/13/2009 10/16/2009
10/20/2009 10/20/2009

109 AMICUS CURIAE BRIEF by Eagle Forum Education &Legal Defense Fund. (Duong, D) (Entered: 09/30/2009)
110 MOTION for Final Approval of Settlement; Entry of Stipulated Judgment; and Award of Attorneys' Fees and Costs by Kelsey Brust, Jessica Bulala, Laura Ludwig. Motion Hearing set for 10/16/2009 at 10:00 AM in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr.. (Olivier, Monique) Modified on 10/13/2009 (Kaminski, H). (Entered: 10/09/2009)
111 MEMORANDUM by Kelsey Brust, Jessica Bulala, Laura Ludwig in SUPPORT of 110 MOTION . (Olivier, Monique) Modified on 10/13/2009 (Kaminski, H). (Entered: 10/09/2009)
112 DECLARATION of Monique Olivier in SUPPORT of 110 MOTION. (Olivier, Monique) Modified on 10/13/2009 (Kaminski, H). (Entered: 10/09/2009)
113 DECLARATION of Noreen A. Farrell in SUPPORT of 110 MOTION. (Olivier, Monique) Modified on 10/13/2009 (Kaminski, H). (Entered: 10/09/2009)
114 DECLARATION of Mark A. Chavez in SUPPORT of 110 MOTION. (Olivier, Monique) Modified on 10/13/2009 (Kaminski, H). (Entered: 10/09/2009)
115 DECLARATION of Dina R. Lassow in SUPPORT of 110 MOTION. (Olivier, Monique) Modified on 10/13/2009 (Kaminski, H). (Entered: 10/09/2009)
116 DECLARATION of David Burkett in SUPPORT of 110 MOTION . (Olivier, Monique) Modified on 10/13/2009 (Kaminski, H). (Entered: 10/09/2009)
117 PROPOSED ORDER granting 110 MOTION by Kelsey Brust, Jessica Bulala, Laura Ludwig. (Attachments: # 1 Stipulated Judgment and Order)(Olivier, Monique) Modified on 10/13/2009 (Kaminski, H). (Entered: 10/09/2009)
118 OPPOSITION by Plaintiffs Kelsey Brust, Jessica Bulala, Laura Ludwig to 109 Brief. (Olivier, Monique) (Entered: 10/13/2009)
119 MINUTES (Text Only) for proceedings held before Judge Frank C. Damrell, Jr: MOTION HEARING held on 10/16/2009. 110 Plaintiffs' Motion for Judgment and Motion for Approval of Settlement is GRANTED. Plaintiffs Counsel Monique Olivier, Noreen Farrell present. Defendants Counsel Nancy Sheehan present. Court Reporter/CD Number: Laurie Howard, Diamond Court Reporter. (Narcisse, M) (Entered: 10/16/2009)
120 ORDER signed by Judge Frank C. Damrell, Jr on 10/19/09 GRANTING Joint Motion for Final approval of settlement, entry of stipulated judgment; and award of attorney's fees and costs.(Mena−Sanchez, L) (Entered: 10/20/2009)
121 STIPULATED JUDGMENT AND ORDER signed by Judge Frank C. Damrell, Jr on 10/19/09. CASE CLOSED. (Mena−Sanchez, L) (Entered: 10/20/2009)