1

Filed 6/24/22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

JOHN DOE, 

 Plaintiff and Respondent,

v.

THE REGENTS OF THE 

UNIVERSITY OF CALIFORNIA,

 Defendant and Respondent;

JANE ROE, 

 Appellant.

 A161546

 (Alameda County 

 Super. Ct. No. RG18888616)

 

John Doe filed a petition for writ of mandate against the Regents of the 

University of California (the University), seeking to set aside the University’s 

decision to discipline John for sexually assaulting Jane Roe.

1 The trial court 

granted the petition, finding John was not afforded procedural due process

during the University’s investigation of Jane’s complaint. Jane, who was not 

a party in John’s writ case, moved to vacate the mandate order on the ground 

that the order is void because she did not receive notice of, and an 

opportunity to participate in, the writ proceeding. The trial court denied 

Jane’s motion. We acknowledge that Jane’s interests were affected by the 

1 Like the parties, we use pseudonyms to protect the privacy of these 

individuals. (See Starbucks Corp. v. Superior Court (2008) 168 Cal.App.4th 

1436, 1452, fn. 7.) 
2

mandate proceeding, such that she may have been a real party in interest or 

a necessary party, but she has not established that she was an indispensable 

party. Nor has she established that the absence of even an indispensable 

party is grounds to void a judgment. We accordingly affirm.

FACTUAL AND PROCEDURAL BACKGROUND

I. The Incident and University Investigation

At the beginning of September 2015, John and Jane were friends and 

undergraduate students at the University of California, Santa Barbara 

(UCSB). On September 7, they went to a party together and then had a 

sexual encounter. The next day, a dispute arose about whether the encounter 

was consensual. Jane filed a police report about the incident, which led to a

criminal investigation but no criminal charges. 

Thirteen months after the alleged assault, on October 10, 2016, Jane 

filed a complaint about John with UCSB’s Title IX and Sexual Harassment 

Policy Compliance Office. Title IX refers to Title IX of the Federal Education 

Amendments of 1972, 20 U.S.C. § 1681 et seq., which “prohibits sex 

discrimination under any education program or activity receiving federal 

funds.” (Donovan v. Poway Unified School Dist. (2008) 167 Cal.App.4th 567, 

598.) Title IX has been “applied to require universities to investigate 

allegations of sexual misconduct involving students.” (Doe v. University of 

Southern California (2018) 29 Cal.App.5th 1212, 1215, fn. 2.)

Jane’s complaint was assigned to investigator Kristi Johnson who 

interviewed Jane and obtained a list of witnesses from her. On October 31, 

2016, John was notified about the pending investigation. In January 2017, 

Johnson left UCSB, and the matter was reassigned to investigator Brian 

Quillen. 
3

Quillen interviewed John on May 17, 2017, which was the first time 

that a UCSB representative interviewed John about the incident. On May 

24, after the fact-finding phase of UCSB’s investigation was almost 

completed, Quillen met with John for an oral “debriefing” interview. During 

that meeting, Quillen provided verbal summaries of witness statements and 

John proposed questions for Quillen to ask Jane. The next day, UCSB 

Investigator Yahyavi interviewed Jane and asked her John’s questions. 

On August 9, 2017, Quillen submitted a report to the University’s 

Office of Judicial Affairs (OJA). Quillen’s report summarizes evidence 

collected during the investigation and contains express findings of fact and

recommendations. Quillen found that John was aware, or should have been 

aware, that Jane was incapacitated during their sexual encounter. Quillen 

also found that John fabricated audio recordings that he represented to be 

Jane giving consent to the encounter. Quillen recommended that the OJA 

decide that John sexually assaulted Jane and suspend John for three years. 

On August 24, 2017, the OJA issued a decision that adopted Quillen’s 

findings and recommendation. John appealed the OJA’s decision to UCSB’s 

Interpersonal Violence Appeal Review Committee. As grounds for appeal, 

John alleged procedural errors, findings unsupported by substantial 

evidence, and a disproportionate punishment. 

In October 2017, John submitted questions that he wanted the Review 

Committee to ask witnesses at the hearing on his appeal, which was held 

later that month. The only witnesses who appeared at the hearing were 

John, Jane, investigator Quillen, and OJA representative Suzanne Perkins. 

The Committee asked Quillen and Perkins for answers to John’s questions. 

The Committee did not ask Jane questions, concluding that John’s questions 

of her were outside the scope of his appeal. 
4

On November 13, 2017, the Review Committee denied John’s appeal 

and upheld his suspension.

II. John’s Writ Petition

In January 2018, John filed a petition against the University, seeking a 

writ of mandate under Code of Civil Procedure, section 1094.5 or, in the 

alternative, under section 1085.2 John alleged that UCSB’s disciplinary 

action against him was invalid because the University did not grant him a 

fair hearing, failed to proceed in the manner required by law, and made a 

decision unsupported by the evidence. Seeking independent review, John 

alleged he was denied his right under Title IX to continue his education

without the stigma of having been found responsible for a sexual assault. 

John’s petition names as respondent only the Regents of the University of 

California; Jane Roe is described as a “[n]on-party.” 

In January 2019, the trial court granted John’s petition, in a 41-page 

order directing the University to set aside its decision against John. As a 

preliminary matter, the court construed John’s pleading as a petition for a 

writ of mandate under section 1085, rather than one for administrative 

mandamus under section 1094.5. The court reasoned that “ ‘ordinary 

mandate’ ” is used to review agency decisions made without an evidentiary 

hearing. (Citing McGill v. Regents of University of California (1996) 44 

Cal.App.4th 1776, 1785.) Here, the Regents had acknowledged that UCSB’s 

procedure for investigating sexual violence and sexual harassment 

complaints involves “a single investigator who makes factual findings, a 

single [administrator] at the OJA who makes a decision without a hearing, 

and an appeal board that reviews the decision for substantial evidence.” 

2 Subsequent statutory references are to the Code of Civil Procedure 

unless another statute is cited.
5

However, UCSB’s process did produce a defined record, which the University

had filed with the court, and the court used the evidence in that record to 

review John’s claims.

3 

John’s first claim was that UCSB’s process was unconstitutional 

because it did not afford John the right to question Jane. Recognizing that 

the precise requirements of due process depend on the context, the court 

found that in this case, the University was required to provide John an 

“effective opportunity to present questions to [Jane] in front of the finder of 

fact” because of “the felony level nature” of the charge against John, the 

“importance of the relative credibility” of Jane and John, and the “seriousness 

of the potential consequences” of the University’s decision. The procedures 

followed in this case did not meet that standard, the court found. OJA, 

although it was the decisionmaker, was not the finder of fact. OJA relied on 

the facts as found by investigator Quillen,

4 and neither he nor John was 

present when investigator Yahyavi presented John’s questions to Jane. As a 

result, the court concluded, UCSB’s process was not constitutionally adequate 

for resolving Jane’s complaint of sexual assault; it did not afford “the 

minimum due process opportunity to cross-examine required by the 

constitution.” And the error was prejudicial because cross examination of 

Jane and perhaps other witnesses could have led to a different result, the 

court concluded. 

3 The University’s “administrative record” is not included in the record 

on appeal.

4 The Review Committee could have been a factfinder, as it held a 

hearing and had an opportunity to observe John and Jane, except that its 

role was limited to determining whether the investigator’s findings of fact 

were supported by substantial evidence. Indeed, the Review Committee 

denied John the opportunity to ask Jane questions regarding the merits of 

her complaint at the appeal hearing. 
6

John’s second material claim was that the University failed to follow its 

own policies requiring an investigation that is impartial, thorough, timely 

and fair. The trial court found that the investigation was impartial and 

sufficiently thorough, but it was not completed in a timely manner, nor was it 

fair, given the seriousness of the charge. The court found the procedure to be 

unfair in several respects, including two due process violations so serious 

they amounted to structural error. First, one person served as both 

investigator and factfinder, creating an unacceptable “ ‘record exclusivity’ ”

problem, in that “the investigator is the only person who has seen or heard 

the evidence” on which the factfinder relies. Second, this problem was 

exacerbated here because different investigators interviewed and evaluated 

the credibility of Jane and John, so there was no single finder of fact. 

Finally, the court found that the University’s record of the proceeding 

contained substantial evidence supportive of investigator Quillen’s findings. 

Nevertheless, because of the due process violations, the court granted the 

petition for a writ of mandate directing the University to set aside and vacate 

the disciplinary decision against John. In directing John to prepare a 

proposed judgment, the court ordered that “[t]he judgment must not interfere 

with the discretion of the [University] regarding further proceedings.” 

On February 22, 2019, the court entered judgment and issued the 

peremptory writ of mandate. When the judgment was not appealed, it

became final.

III. Jane’s Motion to Vacate

On June 9, 2020, Jane filed a motion to vacate the order granting the

writ of mandate. Jane argued that the mandate order and resulting 

judgment are void because her statutory rights to notice and the opportunity 

to participate in the proceeding were violated. (Citing §§ 1088, 1107; Palma 
7

v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171 (Palma).) Jane argued 

further that she was an indispensable party in the proceeding because her 

rights and interests were injured by the mandate order, which failed to 

“weigh her interests against [John’s].”

In a declaration filed in support of her motion, Jane stated that she did 

not learn about the writ proceeding until after the court granted John’s

petition. Jane averred that in April 2019, her “CARE Advocate” notified her 

that the University intended to reopen her Title IX case against John. Jane 

contacted the University and a UCSB official sent her a copy of the mandate 

order. Jane had difficulty understanding the impact of the order and was 

unable to secure legal representation until March 2020, when a nonprofit 

organization agreed to represent her. With the assistance of counsel, Jane 

filed her motion to vacate and advised the University that she would not 

participate in a rehearing of her Title IX complaint until her motion was 

decided. 

Jane’s declaration described how UCSB’s Title IX investigation had 

impacted her life, put her reputation at stake, and made her vulnerable to 

accusations that she lied about what happened. She stated further that her

exclusion from John’s writ proceeding made her feel that her experiences as a 

sexual assault victim and survivor were meaningless. Jane also opined that 

she had a right to present her “side of this story” before the court made its 

decision. 

Opposing Jane’s motion to vacate, John argued that Jane did not have 

a right to notice of his writ proceeding, and if Jane wanted to challenge the

Title IX process, her recourse was against the University rather than John. 

The University filed a “Response” to Jane’s motion, in which it declined to 

take a position as to whether Jane was entitled to relief from the judgment,
8

but disputed Jane’s legal theory that the failure to provide her notice of the 

proceeding deprived the court of jurisdiction to issue the mandate order. 

On September 24, 2020, the court denied Jane’s motion to vacate the

mandate order, outlining its reasons in a written order (the September 2020 

order). First, the court rejected Jane’s claim that the mandate order and 

resulting judgment were void for failure to give Jane notice of the proceeding. 

Jane’s reliance on Palma, supra, 36 Cal.3d 171, was misplaced, the court 

found, because Jane was not a named party in the writ proceeding. Second, 

the court doubted that Jane was a real party in interest because John’s 

request for a determination that his constitutional right to due process had 

been violated did not directly affect Jane’s rights or status as a UCSB 

student. Third, even if Jane could establish that her interests in this case 

made her an indispensable party, her absence from the proceeding was not a 

jurisdictional defect but would only preclude the court from requiring Jane to 

take some action or depriving her of a substantial right; the order granting 

John’s petition did not violate these rules, the court found. In Jane’s absence,

the court accorded “complete relief” to the parties to the action—John and the 

University—by “determining whether [the University’s] process for 

adjudicating complaints of sexual assault complied with the accused’s 

constitutional due process rights.” It did not decide the separate issue of 

whether Jane’s evidence would have supported disciplinary action against 

John under a process that complied with constitutional mandates. Finally, 

the court rejected Jane’s contention that the University violated its own 

policy by failing to provide Jane with notice of the writ proceeding. The 

pertinent policy required the University to give Jane written notice “of any 

subsequent change to disciplinary results,” and the court found that the 
9

University complied with this policy when it provided Jane with a copy of the 

mandate order in April 2019. 

DISCUSSION

Jane contends that the September 2020 order denying her motion to 

vacate must be reversed because the mandate order issued in John’s writ 

case is void. To resolve this claim, there are three important issues we are 

not called upon to decide. The first is the fundamental factual question of 

whether John sexually assaulted Jane. That question was not before the 

trial court, and the court’s only observation about Jane’s or John’s credibility 

was that assessing their relative credibility was important to a reliable 

disciplinary decision. The second question we are not called upon to decide is 

what procedures the University should employ in making its disciplinary 

decisions. Although the trial court had a great deal to say on this subject in 

its mandate decision, that aspect of the court’s decision is not before this 

court. Third, we do not address any claim Jane might have had against the 

University for its failure to notify her that John had filed this writ petition. 

We are not asked to review and do not affirm the trial court’s finding that the 

University complied with its own policy requiring it to provide a Title IX 

complainant with notice of “any subsequent change to disciplinary results.” 

Instead, we are asked to decide a question of civil procedure: whether 

Jane’s absence from the mandate proceedings so undermined the case before 

the court as to render the resulting judgment void. And before we decide that 

question, we must address some threshold procedural issues.

I. The Order Is Appealable

Jane contends the denial of her motion to vacate is an appealable order, 

citing Ryan v. Rosenfeld (2017) 3 Cal.5th 124, 135 (Ryan). Although 

respondents do not address this issue, we have an independent duty to 
10

consider this jurisdictional prerequisite. (Jennings v. Marralle (1994) 8 

Cal.4th 121, 126.) We conclude the order is appealable, though not for the

reason Jane advances.

Ryan holds that an order denying a motion to vacate a judgment under 

section 663 is an appealable order. (Ryan, supra, 3 Cal.5th 124.) Section 663 

permits a court to set aside a judgment based on its own decision and to enter 

a new and different judgment where there is an “[i]ncorrect or erroneous 

legal basis for the decision,” or the decision is “not consistent with or not 

supported by the facts.” (§ 663.) Section 663a requires that a party intending 

to file this statutory motion provide timely notice of that intent, and it sets an 

outside limit of 75 days from the date the moving party was served with 

notice of entry of judgment for the court to rule on the motion. (§ 663a, 

subds. (a), (c).) 

Jane’s motion to vacate the mandate order is not a section 633 motion. 

Jane did not purport to file her motion under section 663, nor did she file on a 

timeline consistent with section 663a. Moreover, her motion did not request 

that the court set aside its judgment and enter a different judgment based on 

the same facts. Instead, Jane sought to vacate the mandate order and reopen 

the writ proceeding so she could participate in it. This type of relief is not 

afforded by section 633. (See e.g. Forman v. Knapp Press (1985) 173 

Cal.App.3d 200, 203 [section 663 motion “does not lie to vacate a summary 

judgment and remit an action for trial”].)

Jane’s motion is a nonstatutory motion to vacate a void order. Jane 

filed her motion on the stated grounds that the mandate order and judgment 

“were issued in violation of [Jane’s] rights to due process, are void and must 

be vacated.” A void order or judgment may be directly or collaterally 

attacked at any time. (People v. American Contractors Indemnity Co. (2004) 
11

33 Cal.4th 653, 660 (American Contractors); County of San Diego v. Gorham

(2010) 186 Cal.App.4th 1215, 1228.) Even when relief is not available under 

a statute, the court retains inherent power to vacate void orders. (Ibid.; see 

also Plaza Hollister Ltd. Partnership v. County of San Benito (1999) 72 

Cal.App.4th 1, 15 [“ ‘[a] stranger to an action who is aggrieved by a void 

judgment may move to vacate the judgment’ ”].) 

The general rule is that nonstatutory motions to vacate are not 

appealable, but an exception applies when the appellant alleges that the 

underlying order or judgment is void. (Adoption of Matthew B. (1991) 232 

Cal.App.3d 1239, 1267.) The justification for this exception is that if an order 

or judgment is void, an order denying a motion to vacate that order or 

judgment is also void and appealable because it gives effect to a void 

judgment. (Carlson v. Eassa (1997) 54 Cal.App.4th 684, 691 (Carlson).)

Thus, the denial of Jane’s nonstatutory motion to vacate the allegedly void 

mandate order is an appealable order.

II. Dismissal of the Appeal Is Not Required

John contends that this appeal must be dismissed because Jane lacks

standing to appeal the mandate order or, alternatively, because Jane failed to 

exhaust her administrative remedies. We reject both contentions. 

A. Jane Has Standing 

“Standing to appeal is jurisdictional [citation] and the issue of whether 

a party has standing is a question of law.” (People v. Hernandez (2009) 172 

Cal.App.4th 715, 719–720 (Hernandez).) To “have appellate standing, one 

must (1) be a party and (2) be aggrieved.” (In re Marriage of Burwell (2013) 

221 Cal.App.4th 1, 13; see § 902.) “We liberally construe the issue of 

standing and resolve doubts in favor of the right to appeal.” (Apple, Inc. v. 

Franchise Tax Bd. (2011) 199 Cal.App.4th 1, 13.)
12

First, Jane is now a party in this case. “[A] nonparty that is aggrieved 

by a judgment or order may become a party of record and obtain a right to 

appeal by moving to vacate the judgment.” (Hernandez, supra, 172 

Cal.App.4th at p. 720.) “A motion to vacate in the trial court provides a 

means by which such a nonparty may become a party to the litigation with a 

right of appeal without the need to formally intervene in the action.” (Henry 

M. Lee Law Corp. v. Superior Court (2012) 204 Cal.App.4th 1375, 1382.)

Here, although Jane was not named as a party in John’s writ petition, she 

became a party by filing a nonstatutory motion to vacate the mandate 

order—a motion that was briefed, argued, and denied on the merits.

Second, Jane is aggrieved by the mandate order. “One is considered 

‘aggrieved’ whose rights or interests are injuriously affected by the 

judgment.” (County of Alameda v. Carleson (1971) 5 Cal.3d 730, 737.) “An 

aggrieved person, for this purpose, is one whose rights or interests are 

injuriously affected by the decision in an immediate and substantial way, and 

not as a nominal or remote consequence of the decision.” (In re K.C. (2011) 52 

Cal.4th 231, 236.)

John contends that Jane was not aggrieved by the denial of her motion 

to vacate because the mandate order does not injuriously affect her rights. 

According to this argument, the mandate order has no impact on Jane 

because it is a determination of John’s due process rights in the Title IX 

disciplinary proceeding, and because the trial court did not make any ruling 

about Jane’s rights. John posits that Jane’s motion to vacate was dismissed 

for lack of standing, and this appeal should be dismissed for the same reason. 

We disagree. The trial court did not dismiss Jane’s motion to vacate for 

lack of standing. And, although the writ proceeding was an adjudication of

John’s due process rights, the resulting judgment reversed a disciplinary 
13

decision that the University made to resolve Jane’s sexual assault complaint. 

Reversal of that decision directly impacts and potentially injures Jane’s 

education-related rights under Title IX. (See Cannon v. University of Chicago

(1979) 441 U.S. 677 [Title IX creates an implied private right of action in 

favor of students when specific requirements are met].)5

Moreover, John’s reliance on the order denying Jane’s motion to vacate 

as proof that Jane’s interests are not injuriously affected affords an 

independent ground for denying his motion to dismiss the appeal. As a 

general rule, when the “disposition of a motion to dismiss requires a 

consideration of the appeal upon its merits, the motion must be denied.” 

(Estate of Wunderle (1947) 30 Cal.2d 274, 279.) John acknowledges this rule 

but contends that an exception permitting dismissal applies here because 

Jane’s appeal is “clearly frivolous.” The exception John attempts to invoke 

applies when “an examination of the judgment roll demonstrates that the 

appeal is frivolous.” (Wunderle, at p. 279.) It does not apply when, as here, 

the motion to dismiss is based on the same ground that the respondent relies 

on to argue for an affirmance of the order (ibid.), and, in any event, we find 

nothing frivolous about this appeal. 

5 “A student may bring a Title IX claim against a school for sexual 

harassment by another student where the harassment ‘is so severe, 

pervasive, and objectively offensive that it effectively bars the victim’s access 

to an educational opportunity or benefit,’ and ‘the funding recipient acts with 

deliberate indifference to known acts of harassment in its programs or 

activities.’ [Citations.] Sexual assault ‘qualifies as being severe, pervasive, 

and objectively offensive sexual harassment that could deprive [plaintiff] of 

access to the educational opportunities provided by her school.’ ” (Doe v. 

University of Southern California, supra, 29 Cal.App.5th at p. 1215, fn. 2.)
14

B. The Exhaustion Requirement Does Not Apply

John argues that even if Jane has standing, her appeal should be 

dismissed because she failed to exhaust her administrative remedies. John

reasons that after Jane was notified about the mandate order, she was 

offered the opportunity to participate in a rehearing of her Title IX complaint, 

but instead of pursuing that available remedy “she opted to forego the 

administrative process” and file a motion to vacate the mandate order. 

Therefore, “judicial intervention is premature” and the appeal should be 

dismissed for failure to exhaust administrative remedies, John posits. 

John’s argument misses the mark because there is no administrative 

remedy for the relief Jane seeks: a right to participate in any mandate 

proceeding that could overturn the disciplinary decision issued in response to 

her complaint of sexual assault. Under the exhaustion doctrine, “where an 

administrative remedy is provided by statute, relief must be sought from the 

administrative body and this remedy exhausted before the courts will act.” 

(Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 292.) The doctrine 

applies to actions seeking both ordinary and administrative mandamus (Leff 

v. City of Monterey Park (1990) 218 Cal.App.3d 674, 680–681), but it does not 

apply here, where the court’s action in granting the writ of mandate is itself 

the subject of the appeal. 

We deny John’s motion to dismiss the appeal and turn now to the 

merits of Jane’s claim.

III. The Mandate Order is Not Void

Jane argues that the mandate order is void because the failure to 

provide her with notice of John’s writ petition deprived the trial court of 

jurisdiction to issue a writ of mandate overturning the University’s 

disciplinary decision. The determination whether an order is void is a 
15

question of law, which we review de novo. (Airs Aromatics, LLC v. CBL Data 

Recover Technologies, Inc. (2018) 23 Cal.App.5th 1013, 1018; Calvert v. Al 

Binali (2018) 29 Cal.App.5th 954, 961; Sakaguchi v. Sakaguchi (2009) 173 

Cal.App.4th 852, 858.) As we will explain, the trial court had fundamental 

jurisdiction to issue the mandate order, and Jane’s arguments to the contrary 

do not withstand scrutiny. 

A. The Court Had Fundamental Jurisdiction

“A judgment is void if the court rendering it lacked subject matter 

jurisdiction or jurisdiction over the parties.” (Carlson, supra, 54 Cal.App.4th 

at p. 691.) “ ‘Lack of jurisdiction in its most fundamental or strict sense 

means an entire absence of power to hear or determine the case, an absence 

of authority over the subject matter or the parties.’ [Citation.] When a court 

lacks jurisdiction in a fundamental sense, an ensuing judgment is void, and 

‘thus vulnerable to direct or collateral attack at any time.’ ” (American 

Contractors, supra, 33 Cal.4th at p. 660.)

Here, the trial court had authority over the subject matter of this 

action. The University is a statewide administrative agency and public legal 

entity. (Do v. Regents of University of California (2013) 216 Cal.App.4th 

1474, 1487.) Judicial review of its decisions may be obtained by a proceeding 

for a writ of ordinary or administrative mandate. (McGill v. Regents of 

University of California, supra, 44 Cal.App.4th at p. 1785; Bunnett v. Regents 

of University of California (1995) 35 Cal.App.4th 843, 848.)

The trial court also had personal jurisdiction over the University. 

“ ‘ “Service of process is the means by which a court having jurisdiction over 

the subject matter asserts its jurisdiction over the party and brings home to 

him reasonable notice of the action.” ’ ” (Rockefeller Technology Investments 

(Asia) VII v. Changzhou SinoType Technology Co., Ltd. (2020) 9 Cal.5th 125, 
16

139.) The University was served with John’s writ petition and appeared in 

court to defend its decision to discipline John. Because the court had 

personal jurisdiction over the University as well as subject matter 

jurisdiction, the court had “jurisdiction in its most fundamental . . . sense,” 

and its mandate order against the University is not void under the familiar 

rule of American Contractors, supra, 33 Cal.4th at page 660.

Jane contends the mandate order is void because she was denied notice 

of John’s petition and the opportunity to participate in the writ proceeding. 

To the extent her authority addresses the due process and statutory rights of 

parties, it falls comfortably within the rule of American Contractors and is 

inapposite because Jane does not establish—or even contend—that she was a 

party to John’s writ proceeding before she filed her motion to vacate the 

mandate order.

The constitutional right to “due process requires that a party be given 

notice and an opportunity to defend his [or her] interests.” (Antelope Valley 

Groundwater Cases (2021) 62 Cal.App.5th 992, 1057, italics added; see also 

Brown v. Williams (2000) 78 Cal.App.4th 182, 186, fn. 4; Rochin v. Pat 

Johnson Manufacturing Co. (1998) 67 Cal.App.4th 1228, 1239.) For example, 

“if a defendant is not validly served with a summons and complaint, the court 

lacks personal jurisdiction and a default judgment in such action is subject to 

being set aside as void.” (Lee v. An (2008) 168 Cal.App.4th 558, 564; see also

Caldwell v. Coppola (1990) 219 Cal.App.3d 859, 863.) The notice 

requirements of due process apply to plaintiffs as well as to defendants. 

(Reid v. Balter (1993) 14 Cal.App.4th 1186, 1194 [order of dismissal void 

when plaintiffs did not receive notice that case would be dismissed if they 

failed to appear at status conference].)
17

Similar rights are protected by statute. In a writ of mandate

proceeding, the parties are named in the petition, which serves as the 

complaint. (Tracy Press, Inc. v. Superior Court (2008) 164 Cal.App.4th 1290, 

1296–1297 (Tracy Press); Tabarrejo v. Superior Court (2014) 232 Cal.App.4th 

849, 859 (Tabarrejo).) Under section 1107, an application for the issuance of 

a prerogative writ “shall” be served on “the respondent and the real party in 

interest named in such application.” (Italics added.) And under section 1088, 

a peremptory writ may “issue[] in the first instance” only upon notice; a copy 

of the mandate petition “must be served on each person against whom the 

writ is sought.” (Italics added.) 

None of this authority aids Jane, however, as the University is the only 

respondent or real party in interest named in John’s petition, and the only 

party against whom John sought writ relief. Jane is described as a nonparty 

to the writ proceeding, and as a result the “general and familiar concepts of 

due process” she invokes and the language of the cited writ statutes do not

establish that the mandate order is void. 

B. Real Parties in Interest and Necessary and Indispensable

 Parties

Jane contends that she had a right to receive notice and participate in 

the writ proceeding because she was a real party in interest and, as such, a 

necessary and indispensable party. According to this argument, John’s 

failure to name Jane as a real party in interest was error, and this alleged 

error deprived the court of jurisdiction to issue the mandate order.

1. Whether Jane Is a Real Party in Interest Is Not

 Dispositive

The concept of a real party in interest is not susceptible to a single 

meaning or fixed consequence. Generally, the term refers to a person or 

entity that has an actual and substantial interest that is directly affected by 

a proceeding. (Martin v. Bridgeport Community Assn., Inc. (2009) 173 
18

Cal.App.4th 1024, 1031–1032.) Thus, a real party in interest is a “person 

who possesses the right to sue under the substantive law.” (City of 

Brentwood v. Campbell (2015) 237 Cal.App.4th 488, 504; see § 367 [“Every 

action must be prosecuted in the name of the real party in interest, except as 

otherwise provided by statute”].) In writ proceedings, the real party in 

interest can be “ ‘the other party’ ” in a lawsuit or proceeding involving the 

petitioner, or the “ ‘real adverse party’ ” in whose favor the act complained of 

by the petitioner was done. (Sonoma County Nuclear Free Zone ‘86 v. 

Superior Court (1987) 189 Cal.App.3d 167, 173 (Sonoma County NFZ); see 

also Tabarrejo, supra, 232 Cal.App.4th at p. 859.)

Jane contends that she was a real party in interest in John’s court case 

because the mandate order directly affects her interests as the alleged victim 

of John’s sexual assault. Jane reasons that the policies and procedures the 

University adopted in order to comply with Title IX and related federal 

regulations are designed to protect her, and those protections were directly 

implicated by John’s writ petition, which sought to overturn the University’s 

decision to sanction him for assaulting Jane.6

Jane is persuasive that her actual and substantial interests were 

directly affected by John’s writ case. She was, after all, the complaining 

witness in the disciplinary proceeding that resulted in John’s suspension 

from the University, which John successfully petitioned the trial court to set 

aside. Jane might fairly be described as the “ ‘real adverse party’ ” in whose 

favor the University’s disciplinary decision was entered. (See Sonoma 

County NFZ, supra, 189 Cal.App.3d at p. 173.) But the trial court made no 

6 Jane’s appeal is supported on this point by amici curiae briefs filed on 

behalf of the following organizations: California Women’s Law Center; Know 

Your IX; and Family Violence Law Center. 
19

finding as to whether Jane was a real party in interest, concluding that issue 

is not dispositive. We agree.

Whether Jane could have been named a real party in interest is not 

dispositive because John chose not to identify her as such in his writ petition. 

“Failing to name an individual as a real party in interest in the pleading that 

initiates the action is not a defect. It does not render the pleading defective; 

it merely defines the parties, leaving out the individual not named.” (Tracy 

Press, supra, 164 Cal.App.4th at p. 1296.) Because Jane was not named as a 

party and duly served with notice of the action, the court did not obtain 

jurisdiction to enter an order against her. (Ibid.) But, as the trial court 

explained, the mandate order was not entered against Jane. It did not 

require her to take any action or prevent her from taking any action; it 

simply directed the University to set aside its disciplinary decision against 

John and proceed from there. 

Jane insists controlling case law establishes that failure to name a real 

party in interest in a writ proceeding is a jurisdictional defect, which voids 

any mandate order the petitioner has obtained. To support this claim, Jane 

cites Palma, supra, 36 Cal.3d 171 and Sonoma County NFZ, supra, 189 

Cal.App.3d 167, but to no avail.

Palma addresses the proper procedure for a court to issue a peremptory

writ of mandate in the first instance, i.e., without first issuing an alternative 

writ. (Palma, supra, 36 Cal.3d at p. 175.) Petitioners in Palma were 

defendants in a personal injury action whose motion for summary judgment 

had been denied. They filed a petition for writ of mandate in the court of 

appeal requesting issuance of an alternative writ and, upon return, a 

preemptory writ commanding the superior court to set aside the summary 

judgment order. (Id. at p. 177.) Instead, the court of appeal issued a 
20

peremptory writ in the first instance, directing the superior court to grant the 

defendants’ motion for summary judgment. (Ibid.) This was reversible error, 

the Palma court found, because a court’s authority to issue a peremptory writ 

in the first instance is limited by section 1088 to cases in which opposing 

parties have received proper notice. (Id. at p. 178.) The opposing parties in 

Palma were not provided such notice because neither the petitioner nor the 

court of appeal notified them that issuance of a peremptory writ in the first 

instance was being sought or considered. (Id. at p. 180.) 

Jane contends that, under Palma, a mandate petition must name all 

real parties in interest and provide them with notice of the writ proceeding. 

She reasons that this requirement is implicit in a statement in Palma that 

section 1088’s notice provision applies to “the parties adversely affected by 

the writ.” (Palma, supra, 36 Cal.3d at p. 180.) We are not persuaded by this 

reasoning. The Palma court did not hold or even consider whether a person 

who is not named in a writ petition as a respondent or real party in interest 

has a right to notice of the proceeding under section 1088. Nor did it address 

whether the failure to name a real party in interest deprives the court of 

fundamental jurisdiction to adjudicate a writ petition. “It is well settled that 

language contained in a judicial opinion is ‘ “to be understood in the light of 

the facts and issue then before the court, and an opinion is not authority for a 

proposition not therein considered.” ’ ” (People v. Banks (1993) 6 Cal.4th 926, 

945.) This principle applies with special force here, where the Palma court 

was applying a statute that, by its terms, requires notice only to those 

“against whom the writ is sought” (§ 1088), in a case in which the entity 

denied notice was a named party in the proceeding. 

Sonoma County NFZ, which is closer to our case, addresses whether a 

writ can be challenged because of its impact on an absent real party in 
21

interest. (Sonoma County NFZ, supra, 189 Cal.App.3d 167.) The case

involved a dispute about the process for filing ballot arguments for a voter 

initiative to declare Sonoma County a nuclear-free zone. A group that 

opposed the measure (opponents) filed a petition in the superior court seeking 

a writ of mandate directing the county clerk to accept and publish ballot 

arguments that they submitted after the statutory deadline. (Id. at pp. 170 

& 172.) The opponents named the clerk in their petition, but not the group 

that supported the initiative, which included its individual sponsors

(proponents). (Id. at p. 172.) The superior court issued the writ of mandate, 

and after the proponents received notice of it, they filed a petition in the court 

of appeal seeking their own writ of mandate to compel the superior court to 

set aside the earlier writ of mandate. (Id. at pp. 170 & 173.)

The Sonoma County NFZ court concluded that the superior court’s writ 

of mandate was issued in error. (Sonoma County NFZ, supra, 189 

Cal.App.3d at p. 171.) Pertinent here, the appellate court agreed with the 

proponents that they were real parties in interest in the opponents’ writ 

proceeding, and that the superior court did not have authority to issue a 

peremptory writ without affording them notice of the proceeding. (Id. at 

p. 173.) The court found first that a mandate petition “must name the real 

party in interest, who thereafter has a right to notice and to be heard before a 

trial or appellate court issues a peremptory writ.” (Ibid.) Then the court 

declared it would be “difficult” to conclude the proponents were not the real 

party in interest under the facts presented. (Id. at p. 174.)

Jane contends this case is analogous to Sonoma County NFZ, supra,

189 Cal.App.3d 167, but we disagree. The proponents in Sonoma County 

NFZ had a “clear, direct interest” in litigating the question whether the 

opponents should be excused from complying with the election law (id. at p. 
22

174) because the two groups were “in direct conflict on the merits of the 

initiative” (id. at p. 175). Moreover, the relief that the opponents sought in 

Sonoma County NFZ directly harmed the proponents by forcing the county 

clerk to accept and publish ballot arguments attacking the proponents’ 

initiative after they had submitted their own ballot arguments, which 

frustrated a statutory scheme designed to ensure simultaneous filings. (Id. 

at pp. 170, 174.) In other words, the superior court writ was squarely 

directed at the proponents—it required them to participate in a noncompliant 

electoral process that was demonstrably unfair to them. By contrast here, 

the mandate order under review vacated a disciplinary decision arrived at by 

a process that was deemed unfair to John but did not limit the University’s 

discretion about how it would proceed with reinvestigating Jane’s complaint. 

Although Jane and John are in direct conflict as to the merits of Jane’s 

assault complaint, Jane articulates no direct interest in John’s claim that the 

University violated his right to due process. Jane may be frustrated by the 

additional delay in resolving her complaint, but she does not identify any 

unfairness to her in the result the superior court reached. (See Doe v. 

Westmont College (2019) 34 Cal.App.5th 622, 640 [compelling university to 

comply with due process principles benefits the accused student, alleged 

victim and the college]; Doe v. Regents of University of California (2018) 28 

Cal.App.5th 44, 46 [“When the accused does not receive a fair hearing, 

neither does the accuser”].) 

Nor do we accept Jane’s contention that Sonoma County NFZ stands 

for the proposition that a mandate order is void if issued pursuant to a 

petition that did not name a real party in interest. Unlike Jane, the 

proponents in Sonoma County NFZ challenged the superior court’s authority 

to issue a writ in that case by filing their own mandate proceeding in the 
23

court of appeal, rather than by moving to vacate the first mandate order as 

void. (Sonoma County NFZ, supra, 189 Cal.App.3d at p. 173.) Further, the 

proponents in Sonoma County NFZ were not only a real party in interest, 

they were a party against whom relief was granted, in that they were 

required to participate in an unfair electoral process. Finally, and in any 

event, the court of appeal denied the proponents’ request for a peremptory 

writ because the election had occurred before the case was decided. (Id. at 

pp. 172 & 174.) Thus, although the court of appeal opined that the superior 

court writ was issued in error, it did not invalidate the lower court’s order on 

any ground. 

In sum, neither Palma nor Sonoma County NFZ is precedent for 

declaring a mandate order void for failing to join a real party in interest. 

Jane’s remaining arguments in support of her claim are based on a different 

body of law, to which we now turn. 

2. Jane Fails To Show She Was An Indispensable Party

Jane contends that the mandate order is void because she was an 

indispensable party to the writ proceeding, such that excluding her from the 

proceeding deprived the court of jurisdiction. We conclude that even if Jane 

may have been a necessary party, she has not established she was 

indispensable to adjudication of this writ petition or that excluding her from 

the writ proceeding was a jurisdictional error.

Section 389, subdivision (a) provides that a person who may be properly 

joined as a party in an action “shall” be so joined in certain circumstances: “if 

(1) in his absence complete relief cannot be accorded among those already 

parties or (2) he claims an interest relating to the subject of the action and is 

so situated that the disposition of the action in his absence may (i) as a 

practical matter impair or impede his ability to protect that interest or (ii) 
24

leave any of the persons already parties subject to a substantial risk of 

incurring double, multiple, or otherwise inconsistent obligations by reason of 

his claimed interest.” (§ 389, subd. (a).) “A person meeting these 

requirements is often referred to as a ‘necessary party.’ ” (American Indian 

Model Schools v. Oakland Unified School Dist. (2014) 227 Cal.App.4th 258, 

296 (American Indian Model Schools).) If a person who qualifies as a 

necessary party “cannot be made a party” to the action, the court must 

determine under subdivision (b) whether “in equity and good conscience the 

action should proceed among the parties before it, or should be dismissed 

without prejudice, the absent person being thus regarded as indispensable.” 

(§ 389, subd. (b).) 

Determining whether a nonparty “ ‘ “is necessary and/or indispensable 

is a matter of trial court discretion in which the court weighs ‘factors of 

practical realities and other considerations.’ ” [Citation.] “A court has the 

power to proceed with a case even if indispensable parties are not joined. 

Courts must be careful to avoid converting a discretionary power or rule of 

fairness into an arbitrary and burdensome requirement that may thwart 

rather than further justice.” ’ ” (American Indian Model Schools, supra, 227 

Cal.App.4th at p. 296; City of San Diego v. San Diego City Employees’

Retirement System (2010) 186 Cal.App.4th 69, 84.) If the trial court commits 

a prejudicial abuse of discretion in deciding a case in the absence of an 

indispensable party, the judgment is properly reversed on appeal. (See e.g. 

Morrical v. Rogers (2013) 220 Cal.App.4th 438 (Morrical).) 

In the present case, the trial court rejected Jane’s contention that she 

was an indispensable party under the circumstances presented here. With 

the benefit of having already ruled on the mandate petition, the court 

concluded that Jane’s absence from the proceeding did not preclude the court 
25

from affording complete relief to the parties before it; nor did it impair Jane’s 

ability to pursue her allegation that John assaulted her. The court did not 

need to exercise jurisdiction over Jane in order to adjudicate a writ petition 

that sought relief solely from the University on the basis that its disciplinary 

procedures fell short of due process standards. 

Jane contends the trial court abused its discretion by concluding she 

was not an indispensable party because she had a right to defend the 

favorable administrative decision that she obtained from the University, and 

that right was destroyed by her exclusion from John’s writ proceeding. 

Under these circumstances, Jane posits, the trial court had no power to issue 

the writ. As support for this argument, Jane relies primarily on two cases: 

Pinto Lake MHP LLC v. County of Santa Cruz (2020) 56 Cal.App.5th 1006 

(Pinto Lake); and Morrical, supra, 220 Cal.App.4th 438. 

In Pinto Lake, a county rent board denied a mobilehome park owner’s 

application for a special rent adjustment after holding a hearing where the 

application was vigorously opposed by park residents and their counsel. 

(Pinto Lake, supra, 56 Cal.App.5th at p. 1011.) The park owner challenged 

the decision by filing a petition for administrative mandamus and complaint 

for declaratory relief against the county. (Ibid.) The trial court sustained the 

county’s demurrer on the ground that the park owner failed to join park 

residents as defendants in the case. However, the resulting judgment 

dismissing the park owner’s action was reversed on appeal. (Id. at p. 1020.) 

The Pinto Lake court found no abuse of discretion in the trial court’s 

ruling that the park residents were necessary parties, where the record 

showed that they participated as respondents in the county’s administrative 

proceeding and that judicial review of the county’s decision in their absence 

would “impede their ability to protect the interests that they successfully 
26

advanced in the administrative proceeding.” (Pinto Lake, supra, 56 

Cal.App.5th at p. 1015.) But the trial court erred by dismissing the lawsuit 

without deciding whether the residents were also indispensable parties. (Id. 

at p. 1011.) Because of the discretionary and equitable nature of the 

indispensable party inquiry, the Pinto Lake court remanded the case for the 

trial court to determine whether to dismiss the case because the residents 

were indispensable parties, or to proceed in the residents’ absence because 

they were not. (Ibid.) 

Pinto Lake may provide some support for Jane’s contention that she 

has a cognizable interest in defending the determination that the University

rendered in her favor. In affirming the finding that the park residents were 

necessary parties in the park owner’s court proceedings, the Pinto Lake court 

found that the residents had an “interest in the finality of the hearing 

officer’s decision,” which “necessarily include[d] an interest in preventing any

remand.” (Pinto Lake, supra, 56 Cal.App.5th at p. 1016, italics in original.) 

Although there are differences between Jane’s role in the University’s case 

against John and the role of the park residents in the county’s formal 

adversarial proceeding (see id. at p. 1015), there is also this point of 

commonality: Jane, too, has an interest in the finality of the administrative

decision. But whether Jane, like the park residents, is a necessary party is 

not the dispositive question.

Pinto Lake does not support Jane’s claim that she was an indispensable 

party. To the contrary, Pinto Lake illustrates that a necessary party might

not be an indispensable party, and both inquiries are matters of trial court 

discretion. (See, e.g., Pinto Lake, supra, 56 Cal.App.5th at pp. 1013–1014 

[discussing § 389, subd. (b)].) The fact that the trial court in Pinto Lake did 

not abuse its discretion by finding that the park residents were necessary 
27

parties does not mean that the trial court in this case abused its discretion by 

concluding that Jane is not an indispensable party, which is a different 

inquiry. Pinto Lake does not address whether park residents were 

indispensable parties because the trial court failed to conduct that inquiry, 

unlike the trial court in this case. Here, the dispositive issue in John’s writ 

proceeding was whether his due process rights were violated, and the trial 

court concluded that it was able to resolve that issue without making any 

ruling about the validity of Jane’s complaint against John. By contrast, in

Pinto Lake the park owner’s prayer for relief included a request that the 

county be ordered to grant its application for a rent increase, reversing on the 

merits the application the park residents had opposed. (Pinto Lake, supra, 56 

Cal.App.5th at p. 1016.)

Jane argues that John sought analogous relief because he challenged 

the sufficiency of the evidence supporting the University’s findings against 

him. It is true that after concluding that the University’s process was 

unconstitutional, the trial court went on to make a conditional finding that 

“[i]f the process had provided adequate due process, then the Investigator’s 

findings of fact would have been supported by substantial evidence.” But the 

University did not appeal the judgment against it, nor does Jane take issue 

with the substance of the trial court’s conclusion that the University’s process 

violated John’s constitutional rights, so this conditional finding is of no 

moment. Instead of deciding the merits of the University’s decision to 

discipline John, the trial court was careful to ensure its judgment not 

interfere with the University’s “discretion . . . regarding further proceedings.” 

And the court made these rulings before Jane filed her motion to vacate, so 

they informed the court’s discretionary decision that Jane was not an 

indispensable party.
28

Jane also relies on Morrical, which involved a dispute among three 

siblings regarding management of a group of family-owned companies. 

(Morrical, supra, 220 Cal.App.4th 438.) Sibling Ann filed an action under 

section 709 of the Corporations Code challenging the validity of a shareholder 

election that gave control of the companies to Altamont, a private equity firm 

with connections to Ann’s brothers. (Id. at pp. 448–449.) Ann alleged that 

her brothers’ votes were invalid and disqualified because their financial 

dealings with Altamont constituted a conflict of interest and breach of 

fiduciary duty. Altamont moved for judgment on the pleadings on the ground 

that Ann failed to name her brothers as defendants in the action. (Id. at 

pp. 449 & 461.) The trial court denied the motion without explanation, then 

found that the election was invalid and entered judgment in favor of Ann. 

Altamont successfully appealed. (Ibid.)

The Morrical court found that Ann’s brothers were indispensable 

parties whose joinder in the action was required. (Morrical, supra, 220 

Cal.App.4th at p. 460.) Because Ann’s claim for relief against Altamont was 

premised on her brothers’ alleged self-dealing and breach of fiduciary duty, 

the brothers’ rights were “necessarily” affected by the judgment 

notwithstanding the fact that the lower court did not directly set aside the 

brothers’ agreements or dealings with Altamont. (Id. at p. 463.) 

Furthermore, the brothers were indispensable parties because excluding 

them impaired their ability to protect their interests and also subjected 

Altamont to a substantial risk of incurring inconsistent obligations by reason 

of the brothers’ claimed interests, the appellate court found. (Ibid.)

Morrical does not support Jane’s contention that she was an 

indispensable party in John’s writ case. John’s claim against the University 

was not premised on allegations that would have required the court to make 
29

any findings about Jane, either expressly or implicitly. Nor did the mandate 

order subject the University to a substantial risk of incurring inconsistent 

obligations to John and Jane, since the court was careful not to dictate how 

the University should proceed with Jane’s complaint after setting aside the 

original disciplinary decision. 

Jane contends that she is an indispensable party under the reasoning 

of Morrical because, although the mandate order was ostensibly directed at 

the University, as a practical matter, it impaired her rights. According to 

this argument, the mandate order impairs Jane’s rights by setting aside a

decision she obtained from the University. This argument confuses Jane’s 

interests with her rights. Jane has an interest in the finality of the

University’s decision to discipline John, but she fails to establish that she has 

a cognizable right to preserve a finding and sanction that were rendered in a 

proceeding that violated John’s constitutional rights. The mandate order 

does not overturn the University’s decision because of anything that Jane did. 

It does not dictate how the University should handle Jane’s complaint going 

forward. And Jane identifies no risk of inconsistent judgments in this case. 

These factual circumstances distinguish Morrical in ways that support the 

trial court’s determination that Jane was not an indispensable party.

Morrical also fails to support Jane’s legal argument that a court order 

issued in the absence of an indispensable party is void. Morrical was a direct 

appeal by a named defendant, Altamont, that made a trial court motion for 

judgment on the pleadings due to the failure to join indispensable parties. 

(Morrical, supra, 220 Cal.App.4th at pp. 449 & 461.) When that motion was 

summarily denied, the appellate court reviewed the ruling under an abuse-ofdiscretion standard. (Id. at p. 461.) And in concluding that the trial court 

had abused its discretion, Morrical emphasized that evidence of prejudice to 
30

the unjoined person was “ ‘of critical importance.’ ” (Id. at p. 463.) Morrical

did not hold or intimate that the failure to join an indispensable party 

deprived the court of jurisdiction to decide a case. We turn, finally, to cases 

that address that point explicitly.

3. Failure to Join an Indispensable Party Is Not a

 Jurisdictional Defect

Jane’s collateral attack of the final judgment in John’s writ case is 

premised on proving that the judgment is void for lack of jurisdiction. Even if 

Jane could establish that she was an indispensable party in the writ case, 

that would not mean that the mandate order is void. Contrary to Jane’s 

appellate arguments, the “failure to join ‘indispensable’ parties does not 

deprive a court of the power to make a legally binding adjudication between 

the parties properly before it.” (Weir v. Ferreira (1997) 59 Cal.App.4th 1509, 

1519.) To be sure, “ ‘ [a]n indispensable party is not bound by a judgment in 

an action in which he was not joined.’ ” (Save our Bay, Inc. v. San Diego 

Unified Port Dist. (1996) 42 Cal.App.4th 686, 693.) But failing to join an 

indispensable party “ ‘ “is not ‘a jurisdictional defect’ in the fundamental 

sense.” ’ ” (Tracy Press, supra, 164 Cal.App.4th at pp. 1298–1299; see Kraus 

v. Willow Park Public Golf Course (1977) 73 Cal.App.3d 354, 364 (Kraus).) 

Jane relies on Tracy Press, supra, 164 Cal.App.4th 1290, a case that

reinforces many of our conclusions. The case arose out of a disputed public 

records request for correspondence between a city council member named 

Tucker and the Lawrence Livermore National Laboratory. The newspaper 

that sought these records filed a writ petition in the superior court to compel 

the city and Tucker to produce emails from Tucker’s private account, which 

was denied. The newspaper challenged the ruling by filing a petition for writ 

of mandate in the appellate court, which named the superior court as 

respondent and the city as the only real party in interest. (Id. at p. 1294–
31

1295.) The Tracy Press court dismissed the petition because Tucker was not 

a party in the proceeding and she was indispensable. (Id. at p. 1295.) Tucker 

was not a party, the court found, because she was not designated as a party 

in the newspaper’s writ petition. This fact was not a “defect,” but because 

Tucker was a stranger to the action, the court did not have jurisdiction over 

her and could not issue an order “requiring [her] to act.” (Id. at p. 1297.) Yet 

it was Tucker’s emails, residing on her personal computer, to which the 

newspaper sought access. (Id. at pp. 1294 & 1299.) The court concluded it 

had to dismiss the writ petition because Tucker was an indispensable party 

under those circumstances; there was no way to afford effective relief in her 

absence. (Id. at p. 1301.) 

Tracy Press does not assist Jane. The case follows settled authority in 

holding that the decision whether to dismiss an action for failure to name an 

indispensable party is a matter of judicial discretion, which may turn on

many factors. (Tracy Press, supra, 164 Cal.App.4th at pp. 1298 & 1299.) In 

Tracy Press, Tucker was an indispensable party because the newspaper 

sought to compel her to act and there was no effective order that could be 

made in her absence. (Id. at pp. 1299–1302.) As in Tracy Press, in this case

Jane’s absence from the proceeding meant that the court could not issue an 

order requiring her to act, which the trial court acknowledged in its 

September 2020 order. But unlike in Tracy Press, Jane was not 

indispensable because the mandate order is directed at the University and 

does not require Jane to take any action or to refrain from acting. 

Tracy Press also affirms the legal point that is independently fatal to 

Jane’s claim: failing to join an indispensable party “ ‘ “is not ‘a jurisdictional 

defect’ in the fundamental sense; even in the absence of an ‘indispensable’ 

party, the court still has the power to render a decision as to the parties 
32

before it which will stand. It is for reasons of equity and convenience, and 

not because it is without power to proceed, that the court should not proceed 

with a case where it determines that an ‘indispensable’ party is absent and 

cannot be joined.” ’ ” (Tracy Press, supra, 164 Cal.App.4th at pp. 1298–1299.) 

Thus, even if Jane could establish error in the failure to designate her an 

indispensable party, this would not establish that the mandate order is void. 

The trial court in this case still had “ ‘ “the power to render a decision as to 

the parties before it.” ’ ” (Id. at p. 1298.) And that decision “ ‘ “will stand.” ’ ” 

(Ibid.)

In her reply brief, Jane contends that many cases characterize the 

failure to name an indispensable party as a jurisdictional defect that bars the 

court from proceeding to judgment, but the cases Jane cites were decided 

under a former version of section 389. (See Bank of California v. Superior 

Court (1940) 16 Cal.2d 516, 519; Piedmont Publishing Co. v. Rogers (1961) 

193 Cal.App.2d 171, 180.) “ ‘Since the 1971 revision of . . . section 389, failure 

to join “indispensable” parties does not deprive a court of the power to make a 

legally binding adjudication between the parties properly before it.’ ” (Golden 

Rain Foundation v. Franz (2008) 163 Cal.App.4th 1141, 1155; see also Kraus,

supra, 73 Cal.App.3d at p. 364.) 

This appeal, like Jane’s motion to vacate, is predicated on Jane’s 

contention that the mandate order is void. Jane makes a plausible argument 

that she had an interest in preserving the University’s disciplinary decision 

against John, but that argument does not prove that the mandate order is 

void under any theory she offers. The record before us shows that the trial 

court had the power to make a legally binding adjudication between the 

parties that were properly before it in the writ proceeding—John and the 
33

University. Under these circumstances, we reject Jane’s contention that the 

order granting the writ of mandate is void.

DISPOSITION

The September 2020 order denying Jane Roe’s motion to vacate the 

order granting John Doe’s petition for writ of mandate is affirmed.

TUCHER, P.J.

WE CONCUR:

FUJISAKI, J.

RODRÍGUEZ, J.

Roe v. Doe (A161546)
34

Trial Court: Alameda County Superior Court

Trial Judge: Hon. James Reilly

Counsel: Steptoe & Johnson, Robyn C. Crowther, Melanie A. Ayerh; 

Public Counsel Law Center, Kathryn A. Eidmann, 

Amanda Savage, Tara Ford, Noreen A. Farrell; Equal 

Rights Advocates, Brenda Star Adams and Maha 

Ibrahim for Appellant

Family Violence Law Center, Erin Scott, Stephanie Penrod; 

and L.L. Dunn Law Firm, Laura L. Dunn for Amici 

Curiae on behalf of Appellant

California Women’s Law Center, Chelsea Mutual, Elise 

Brumbach for Amici Curiae on behalf of Appellant

Hathaway Parker, Mark M. Hathaway, and Jenna E. 

Parker for Plaintiff and Respondent 

Munger, Tolles & Olson, Hailyn J. Chen, and Teresa 

Alexandra Reed Dippo for Defendant and Respondent 

Roe v. Doe (A161546)