principles, we determine section 10962 permits a party to recover reasonable attorney
fees incurred in the writ of mandate proceeding, but not fees incurred in the
administrative hearing process.
1 All undesignated statutory references are to the Welfare and Institutions Code.
2
FACTUAL AND PROCEDURAL SUMMARY
This appeal arose from minor K's entitlement to certain In-Home Supportive
Services (IHSS) under California law. The IHSS program "enables aged, blind or
disabled poor to avoid institutionalization by remaining in their homes with proper
supportive services. . . ." (Bedoe v. County of San Diego (2013) 215 Cal.App.4th 56, 58-
59; see § 12300 et seq.) "The program compensates persons who provide the services to
a qualifying incapacitated person." (Guerrero v. Superior Court (2013) 213 Cal.App.4th
912, 920.) Generally, an eligible person is entitled to IHSS services not to exceed 195
hours per month. (§ 12303.4, subd. (a).) However, if the county welfare department
determines the person needs "at least 20 hours per week" of specified care, the individual
shall receive services not to exceed 283 hours per month. (§ 12303.4, subd. (b).) The
determination whether the individual is entitled to the higher benefit level requires a
factually intensive evaluation of the assistance needed for numerous specified daily living
tasks.
In 2006, the County of San Diego (County) found that eight-year-old K, who was
diagnosed with autism and a seizure disorder, was eligible to receive IHSS services for
up to 195 hours per month. During the next several years, the County continued to find
K eligible for the 195 monthly hours of paid in-home supportive services.
In 2009, K's mother (on her son's behalf) challenged the 195-hour limit, and
sought to receive services under the 283-hour standard. An administrative hearing was
held, at which neither K nor K's mother was represented by counsel. K's mother speaks
3
Japanese, and can read and write English but has difficulty speaking and understanding
spoken English. After the hearing, the Director denied the request.
K's mother then retained attorney Charles Wolfinger to challenge the Director's
2009 denial. Wolfinger agreed to represent the family on a pro bono basis because K's
parents could not afford an attorney, and agreed to seek fee reimbursement only from the
Director. While the administrative record was being prepared, Wolfinger filed a writ
petition in the superior court to set aside the 2009 denial. However, after reviewing the
completed administrative record, Wolfinger determined the record lacked sufficient
documentary information to ensure success in the writ proceeding. He thus withdrew this
writ petition and agreed to provide pro bono representation to K at a 2010 administrative
hearing in which he planned to provide a more complete record.
At the 2010 hearing, Wolfinger submitted numerous documentary exhibits and an
18-page memorandum in an effort to show K's disabilities warranted the higher benefit
level. Wolfinger also raised a legal issue regarding the propriety of the Director
imposing blanket age limitations for meal preparation and meal cleanup. In July 2010,
the Director denied K's claim, and provided a lengthy explanation.
Three months later, in October 2010, K, through his mother as guardian ad litem,
filed a writ of mandate petition in the superior court challenging the Director's July 2010
decision. (§ 10962.) K was represented by Wolfinger. Wolfinger filed a memorandum
of points and authorities supporting K's claim that the Director had improperly denied the
higher benefit level for in-home supportive services.
4
The Director filed an answer denying the allegations, but did not file a responsive
memorandum of points and authorities. Instead, several months later, the Director and K
entered into a stipulated judgment granting K's petition and issuing a writ of mandate.
Under the stipulation, the Director agreed to set aside the July 2010 decision and find K
eligible to receive up to 283 hours of IHSS monthly services and pay provider back
wages. This stipulation was based on the parties' agreement that K had an "assessed
weekly need of 20.87 hours for the IHSS services of meal preparation, meal clean-up,
bowel and bladder care, feeding, dressing, bathing, . . . oral hygiene and grooming,
rubbing skin and care with prosthesis (taking medications) . . . ." In the stipulation, the
parties also agreed "Petitioner's counsel Charles Wolfinger is entitled to reasonable
attorney fees and costs, the amount to be mutually agreed on or determined after a
noticed motion and memorandum of costs . . . ."
Wolfinger then documented his attorney fees as follows: $17,582 (54.1 hours x
$325) for work performed in connection with the superior court writ petition and $21,320
(65.6 hours x $325) for work performed in connection with the 2010 administrative
hearing. The Director agreed to pay the full requested fees for the work related to the
writ petition ($17,582), but refused to pay the fees for the work related to the
administrative hearing ($21,320). The Director argued that section 10962 precludes a
court from awarding fees for work at the administrative hearing.
K then filed a motion under section 10962, requesting the court to order the
Director to pay Wolfinger's total requested fees. Because the Director had agreed to pay
the $17,582 fee amount, the sole focus of the motion was Wolfinger's argument that
5
section 10962 provides a court with the authority to award attorney fees for services
related to the administrative hearing. In a declaration, Wolfinger said that because he
"had prepared the entire administrative record on the issues and briefed some of them for
the hearing, I spent considerably less time on the merits of the writ petition than I would
have, had I not represented [K] at the [administrative] hearing."
In response, the Director reasserted his arguments that "attorney's fees awarded
under [section 10962] are limited to attorney's fees for work performed in connection
with mandamus proceedings" and "[t]here is nothing in the statute which authorizes the
payment of attorney's fees for work performed in connection with the underlying
administrative hearing."
In reply, Wolfinger discussed the "lodestar" concept for the first time, but did not
request an upward adjustment of his fees and argued only that he should be awarded his
requested fees based on the actual amount of time worked both on the administrative
hearing and the writ petition portions of the case. Wolfinger also requested that the court
award him fees incurred to litigate the attorney fees motion.
In its tentative ruling, the court agreed with the Director that the administrative
attorney fees were not recoverable under "the plain meaning" of section 10962. After a
hearing, the court confirmed this ruling and stated: "Petitioner's motion is granted for
attorney's fees requested for work on the litigation in the amount of $17,582 and denied
for attorney's fees requested for work on the administrative hearing and for work on this
fee motion."
6
DISCUSSION
K contends the trial court erred in interpreting section 10962 as precluding an
attorney fees award for services provided during the underlying administrative
proceeding.
I. Statutory Interpretation
"The rules governing statutory construction are well settled. We begin with the
fundamental premise that the objective of statutory interpretation is to ascertain and
effectuate legislative intent. [Citations.] 'In determining intent, we look first to the
language of the statute, giving effect to its "plain meaning." ' [Citations.] Although we
may properly rely on extrinsic aids, we should first turn to the words of the statute to
determine the intent of the Legislature. [Citation.] Where the words of the statute are
clear, we may not add to or alter them to accomplish a purpose that does not appear on
the face of the statute or from its legislative history." (Burden v. Snowden (1992) 2
Cal.4th 556, 562.)
If the statute is unclear or ambiguous, we may " 'look to a variety of extrinsic aids,
including the ostensible objects to be achieved, the evils to be remedied, the legislative
history, public policy, contemporaneous administrative construction, and the statutory
scheme of which the statute is a part.' [Citations.]" (In re M.M. (2012) 54 Cal.4th 530,
536.) We consider all of the statutory provisions as a whole and in context of the entire
statutory framework. (Los Angeles Unified School Dist. v. Garcia (2013) 58 Cal.4th 175,
186.) We must also consider and harmonize statutes that cover the same subject. (Ibid.)
7
The proper interpretation of a statute is a matter of law which this court reviews de
novo. (Burden v. Snowden, supra, 2 Cal.4th at p. 562.)
II. General Overview of the Fair-Hearing Process and Judicial Review
An IHSS applicant or recipient (claimant) is entitled to an administrative "fair
hearing" to challenge the denial of requested benefits. (Miller v. Woods (1983) 148
Cal.App.3d 862, 868; § 10950.) Before the hearing, a county representative who was not
involved in the initial decision must review the record to ensure the denial was proper,
and then provide the recipient with "all information which can be of assistance to the
claimant in preparing for the hearing." (Cal. Dept. of Social Services Manual of Policies
and Procedures (DSS Manual), reg. 22-073.232(c).) The representative must also timely
provide the claimant with a typewritten position statement, and must inform the claimant
of the availability of any free legal representation and interpreter services. (DSS Manual,
regs. 22-073.232(c), 22-073.25.)
An administrative law judge employed or retained by the California Department of
Social Services presides over the hearing. (§§ 10953, 10953.5.) "The hearing shall be
conducted in an impartial and informal manner in order to encourage free and open
discussion by participants. All testimony shall be submitted under oath or affirmation.
The person conducting the hearing shall not be bound by rules of procedure or evidence
applicable in judicial proceedings." (§ 10955.) The claimant has a right to be
represented at this hearing by a retained counsel or a "lay representative[ ]." (Welfare
Rights Organization v. Crisan (1983) 33 Cal.3d 766, 770 (Crisan); see § 10950.) Social
service claimants are entitled to due process in the administrative process, but this due
8
process right does not encompass the right to appointed counsel. (Crisan, supra, 33
Cal.3d at p. 769; see Goldberg v. Kelly (1970) 397 U.S. 254, 268-270.)
If a claimant does not prevail in the administrative process and seeks to challenge
the decision, the exclusive remedy is to file a writ of mandate petition in the superior
court under section 10962. Section 10962 states:
"The applicant or recipient or the affected county, within one year after receiving notice of the director's final decision, may file a petition with the superior court, under the provisions of Section 1094.5 of the Code of Civil Procedure, praying for a review of the entire proceedings in the matter, upon questions of law involved in the case. Such review, if granted, shall be the exclusive remedy available to the applicant or recipient or county for review of the director's decision. The director shall be the sole respondent in such proceedings. Immediately upon being served the director shall serve a copy of the petition on the other party entitled to judicial review and such party shall have the right to intervene in the proceedings.
"No filing fee shall be required for the filing of a petition pursuant to this section. Any such petition to the superior court shall be entitled to a preference in setting a date for hearing on the petition. No bond shall be required in the case of any petition for review, nor in any appeal therefrom. The applicant or recipient shall be entitled to reasonable attorney's fees and costs, if he obtains a decision in his favor."
III. Analysis
The issue on appeal is whether the court properly found K was not entitled to
attorney fees incurred for services in connection with the underlying social services
administrative hearing.
Under California law, "each party to a lawsuit must pay its own attorney fees
unless a contract or statute or other law authorizes a fee award." (Douglas E. Barnhart,
Inc. v. CMC Fabricators, Inc. (2012) 211 Cal.App.4th 230, 237; see Code Civ. Proc.,
9
§ 1021.) Thus, unless specifically provided by statute or agreement, attorney fees are not
recoverable. (Musaelian v. Adams (2009) 45 Cal.4th 512, 516.) If a party seeking
attorney fees is relying on a statutory authorization, a court has no discretion to award the
fees unless the statutory criteria have been met as a matter of law. (Morgan v. Imperial
To show entitlement to attorney fees, K relies on the last sentence of section
10962: "The applicant or recipient shall be entitled to reasonable attorney's fees and
costs, if he obtains a decision in his favor." Both parties agree that a social services
claimant is entitled to attorney fees under this provision only if he or she prevails in the
judicial action. In other words, without filing a petition for writ of mandate challenging
an administrative decision and prevailing on that petition, it is undisputed that an
applicant or recipient is not entitled to any attorney fees—even if he or she prevailed in
the administrative proceedings below. However, the parties disagree as to whether a
party who files a writ petition and then "obtains a decision in his favor" in the writ
proceeding is entitled to recover attorney fees incurred during the administrative
proceeding. (§ 10962.)
In the almost 50 years since the Legislature enacted section 10962, no court has
addressed this precise issue in a reported decision. However, it appears that at least some
courts and/or litigants have assumed administrative-hearing attorney fees are not
recoverable. There are no cases in which a reviewing court has identified counsel's work
in the administrative hearing process as included within the recoverable attorney fees
10
solely under section 10962.2 On the other hand, several courts have identified fees
incurred in the superior and appellate courts as the fees recoverable under section 10962.
(See, e.g., Blackburn v. Sarsfield (1981) 125 Cal.App.3d 143, 154; County of Alameda v.
Lackner (1978) 79 Cal.App.3d 274, 283; see also Silberman v. Swoap (1975) 50
Cal.App.3d 568, 570-571.)
This assumption is supported by the language and purpose of the statute. The
statute is entitled "Judicial review." (§ 10962.) The first paragraph details the procedures
to be followed in obtaining review of the Director's final decision and states that a writ
petition under Code of Civil Procedure section 1094.5 is the exclusive remedy for
obtaining review. (§ 10962.) The second paragraph provides for a waiver of filing fees
and bonds, calendar preference, and prevailing party attorney fees to an applicant or
recipient "if he obtains a decision in his favor." (Ibid.) These provisions are limited to
the procedures to be followed in the judicial mandamus proceeding. It thus follows that
the Legislature intended the final sentence providing for prevailing party attorney fees
would likewise be limited to fees incurred in the mandamus proceedings.
The legislative purpose of the statute supports this conclusion. As recognized by
the California Supreme Court, the Legislature enacted section 10962 to ensure access to
the courts for individuals who are unlikely to have available resources to mount a judicial
2 The only case suggesting an attorney fees award for work on an administrative challenge to a social services benefit decision was grounded on section 10962 and Code of Civil Procedure section 1021.5. (See Land v. Anderson (1997) 55 Cal.App.4th 69, 84.) As discussed below, the courts have construed the language and policies underlying Code of Civil Procedure section 1021.5 to affirmatively permit a fee award for work in an underlying administrative proceeding under certain circumstances. 11
challenge: "We have previously described the purpose of section 10962 as ensuring that
aggrieved parties have access to the judicial system to establish their statutory rights. The
statutory elimination of filing fees and bond requirements, the preference in setting
hearing dates, and the authorization of attorney's fees and costs encourage such access."
(Woods v. Superior Court of Butte County (1981) 28 Cal.3d 668, 681, italics added; see
Tripp v. Swoap (1976) 17 Cal.3d 671, 679, overruled on another ground in Frink v. Prod
(1982) 31 Cal.3d 166, 180.) Forty years ago, this court similarly observed that "the
attorney fees provided for [in section 10962] are to permit a claimant to establish his right
to a statutory benefit that by its character is obtainable only by a needy person whose
financial condition does not leave a margin for such occasional necessities as attorney
fees. Yet the preparation of a petition for writ of mandate and the proceedings incidental
thereto are matters outside the field of ordinary experience among lay[persons]." (Trout
v. Carleson (1974) 37 Cal.App.3d 337, 343; see also Silberman v. Swoap, supra, 50
Cal.App.3d at p. 571.)
Unlike the legislative view regarding the importance of legal representation at
judicial proceedings, the Legislature recognized that claimants at administrative hearings
could represent themselves or have a layperson act as their authorized representative.
(§ 10950; see Crisan, supra, 33 Cal.3d at p. 770.) Consistent with this, the Legislature
provided that the administrative hearings would be "informal" and would not be subject
to inflexible procedural or evidentiary rules, and would be conducted by a hearing officer
generally knowledgeable about the detailed social services rules and regulations. (See
§§ 10955, 10953, 10958.) The state agency rules also provide a claimant with the right to
12
substantial assistance in understanding the basis for the denial of requested benefits. (See
DSS Manual, supra, reg. 22-073.) Given the legislative distinction between the rules
governing the administrative process that seek to assist unrepresented claimants in
presenting their claims and the rules governing the writ of mandate judicial process that
seek to encourage legal representation for meritorious claims, we cannot conclude the
Legislature intended that attorney fees would be awarded similarly for work in both the
trial and administrative context.
Our conclusion is further supported when examining the statutory language in the
broader context of judicial interpretations of other attorney fees statutes. Section 10962
is silent regarding the recovery of attorney fees in administrative proceedings. Courts do
not generally presume that the statutory phrase "reasonable attorney fees" includes fees
incurred at an administrative hearing. This is distinguishable from attorney fees incurred
on appeal. As a general rule, a statute providing for prevailing party attorney fees
"necessarily includes attorney fees incurred on appeal unless the statute specifically
Under this method, a court first calculates the number of hours reasonably spent
multiplied by the reasonable hourly rate for each billing professional, and then may adjust
the amount based on various relevant factors to ensure the fee reflects " 'the fair market
value [of the attorney services] for the particular action.' " (Concepcion v. Amscan
Holdings, Inc. (2014) 223 Cal.App.4th 1309, 1321.) This rule may apply even if the
attorney has performed the services pro bono. (See Flannery v. Prentice (2001) 26
Cal.4th 572, 585; Building a Better Redondo, Inc. v. City of Redondo Beach (2012) 203
Cal.App.4th 852, 873.)
This lodestar calculation rule is unhelpful here. The issue before us concerns
whether fees for work in the underlying administrative hearing are recoverable and not
how much an attorney would be entitled for this work. We must determine if the
Legislature intended these fees to be part of the fee recovery if a social services claimant
3 In reaching this conclusion, we have examined the legislative history materials provided by the parties, but the parties have not pointed to, nor has our independent review disclosed, any statements in the legislative materials that are relevant or helpful to resolving the issues before us. 17
obtains "a decision in his favor" in the writ of mandate action. (§ 10962.) The resolution
of this issue does not require that we determine whether the hourly rate and time spent are
reasonable and whether those fees should or should not be "enhanced." We note further
that Wolfinger did not request the court to use a lodestar multiplier to enhance his actual
hours and hourly rate, and at oral argument, Wolfinger confirmed that he had not sought,
and was not seeking, a multiplier to enhance his fees.
DISPOSITION
Affirmed. The parties to bear their own costs.
HALLER, J.
WE CONCUR:
HUFFMAN, Acting P. J.
MCINTYRE, J.
18
AI Brief
AI-generated · verify before citing
Holding. Welfare and Institutions Code section 10962 does not authorize the recovery of attorney fees incurred during an underlying administrative hearing, limiting such awards to fees incurred in the judicial writ of mandate proceeding.
Issues
Whether section 10962 permits a court to award attorney fees for services performed in an underlying administrative hearing.
Whether the legislative intent of section 10962 includes administrative hearing fees within the scope of recoverable attorney fees.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“We determine section 10962 permits a party to recover reasonable attorney fees incurred in the writ of mandate proceeding, but not fees incurred in the administrative hearing process.”