Silberman v. Swoap

[570]

Opinion

TAMURA, J.

Petitioner, a claimant for public assistance under the aid to the totally disabled program (ATD), filed a petition for writ of mandate in the superior court to compel the Director of the State Department of Social Welfare (Director) to issue his decision after an administrative “fair hearing” on petitioner’s claim. The court issued an alternative writ and order to show cause, held a hearing thereon, and found in favor of petitioner. Judgment was entered granting a peremptory writ of mandate and awarding petitioner attorney’s fees in the sum of $300. The Director appeals from that portion of the judgment awarding attorney’s fees.

The Director contends there is no statutory authority for an award of attorney’s fees in the instant case and that absent such authorization the award is invalid.

Welfare and Institutions Code section 10962

1

(quoted in the margin below) gives an applicant the right, after receiving notice of the Director’s decision, to file a petition in the superior court under Code of Civil Procedure section 1094.5 for a judicial review of the decision. The section provides that if the applicant obtains a favorable decision, he shall be entitled to reasonable attorney’s fees and costs. The Director contends that since the instant case is a traditional mandate proceeding to compel the performance of an official duty and not a proceeding under Code of Civil Procedure section 1094.5, it does not come within the purview of section 10962.

It is our conclusion that the Director’s reading of section 10962 is too narrow.

[571]

Federal and state regulations in force at times pertinent to these proceedings required the Director to issue his decision within 90 days after a request for a “fair hearing.” That duty had been held to be mandatory rather than directory.