J.K. v. Office of Administrative Hearings

Filed 3/24/06 J.K. v. Office of Administrative Hearings CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. John P. Wade, Judge. Affirmed.

Law Offices of Mark J. Warfel and Mark J. Warfel for Plaintiff and Appellant.

No appearance for Defendant and Respondent Office of Administrative Hearings.

Bill Lockyer, Attorney General, Thomas Yanger, Senior Assistant Attorney General, John H. Sanders, Lead Supervising Deputy Attorney General, Richard T. Waldow, Supervising Deputy Attorney General, and Cristina Felix-Carrasco, Deputy Attorney General, for Defendant and Respondent Department of Developmental Services.

Brunick, McElhaney & Beckett and Leland P. McElhaney for Real Party in Interest and Respondent Inland Regional Center.

In a previous appeal in this case, we awarded J.K. costs on appeal against the Department of Developmental Services (the Department) and the Inland Regional Center (the Center). On remand, J.K. sought printing costs on appeal by filing a memorandum of costs; she also sought attorney fees, under the private attorney general statute (Code Civ. Proc., § 1021.5), by motion. Initially, the Department filed a motion to strike or tax costs; later, however, it conceded that it was not challenging the printing costs sought. Both the Department and the Center opposed the motion for attorney fees. The trial court denied the motion for attorney fees; it took the motion to strike or tax costs off calendar.

J.K. now contends the trial court erred by refusing to award her attorney fees. We disagree. The trial court properly found that the litigation had not conferred a significant benefit on the general public or a large class of persons, as the private attorney general statute would require.

J.K. also contends the trial court erred by failing to award her costs on appeal. Again, we disagree. J.K.'s right to the printing costs she claimed was undisputed. The trial court did not fail or refuse to award them to her; rather, she failed to do everything necessary to obtain them. On remand, she can still file a motion for entry of a judgment for costs.

I

FACTUAL AND PROCEDURAL BACKGROUND

J.K. is a developmentally disabled adult. When she proposed an individual program plan pursuant to the Lanterman Developmental Disabilities Services Act (Welf. & Inst. Code, § 4500 et seq.), the Department and the Center refused to fund it. They argued that the proposed services constituted supported living services (see Welf. & Inst. Code, § 4689) and that she was not eligible for supported living services because she was living with a parent. (See Cal. Code Regs., tit. 17, § 56813.) They also argued that the proposed services would require a self-determination grant under a pilot program that was not then in effect in San Bernardino County. (See former Welf. & Inst. Code, § 4865.5, Stats. 1998, ch. 1043, § 13, repealed by Stats. 2005, ch. 80, § 15.)

J.K. demanded a fair hearing. (See Welf. & Inst. Code, §§ 4646, subd. (g), 4700 et seq.) After an administrative law judge (ALJ) ruled against her, she filed a mandate proceeding. After the trial court, too, ruled against her, she appealed.

We reversed and remanded with directions to issue a writ of mandate â€