K.I. v. Wagner

Filed 5/2/14
CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

K. I., a Minor, etc. D063822

Plaintiff and Appellant,

v. (Super. Ct. No. 37-2010-00102184-
CU-WM-CTL)
JOHN A. WAGNER, as Director, etc.

Defendant and Respondent.

APPEAL from an order of the Superior Court of San Diego County, Joel M.

Pressman, Judge. Affirmed.

Charles Wolfinger for Plaintiff and Appellant.

Kamala D. Harris, Attorney General, Julie Weng-Gutierrez, Assistant Attorney

General, Leslie P. McElroy and Ernest Martinez, Deputy Attorneys General, for

Defendant and Respondent.

An individual who is denied state or local social services may challenge the denial

through an administrative hearing process administered by the state Director of Social

Services (Director). If the party receives an unfavorable administrative decision, the

exclusive remedy is a petition for writ of mandate in the superior court. (Welf. & Inst.
Code,1 § 10962.) Section 10962 governs this judicial review process and provides: "The

applicant or recipient shall be entitled to reasonable attorney's fees and costs, if he obtains

a decision in his favor."

In this case, a county social services recipient was unsuccessful in the

administrative hearing process, but prevailed in the superior court writ of mandate action.

The recipient then moved for attorney fees incurred for attorney services in the superior

court and in the underlying administrative proceedings. The Director agreed to pay the

fees incurred for attorney services in the superior court, but not the fees incurred for work

during the administrative proceedings. The Director argued the recovery of the

administrative attorney fees was not authorized under section 10962. The superior court

agreed and awarded only those fees incurred for work related to the writ of mandate

petition.

The sole issue in this appeal is whether the court erred in concluding that as a

matter of law it had no discretion under section 10962 to award attorney fees incurred for

services performed in the underlying administrative proceedings. We hold the court

properly interpreted section 10962. Applying well-settled statutory interpretation

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

Irrigation Dist. (2014) 223 Cal.App.4th 892, 929.)

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

provides otherwise." (Akins v. Enterprise Rent-A-Car Co. (2000) 79 Cal.App.4th 1127,

1134; Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1499-1500.) But there is no

equivalent rule for fees incurred in an underlying administrative hearing. Instead, when

the Legislature wants to permit the recovery of expenses or attorney fees for

administrative hearings, it has done so explicitly. (See Code Civ. Proc., § 1028.5 [award

for reasonable litigation expenses includes "expenses incurred in administrative

proceedings"]; see also Bus. & Prof. Code, § 5107 [expressly provides that Board of

Accountancy may recover attorney fees incurred in administrative disciplinary hearings];

13
Bus. & Prof. Code, § 3753.7 [same for Respiratory Care Board]; Gov. Code, § 38773.5,

subd. (b) [cities may provide for recovery of attorney fees "in any action, administrative

proceeding, or special proceeding" to abate a nuisance]; Gov. Code, § 25845, subd. (c)

[same as for counties in actions to abate nuisances].)

In this regard, K's reliance on decisions interpreting the private attorney general

statute is misplaced. (Code Civ. Proc., § 1021.5.) Under Code of Civil Procedure section

1021.5, the court may award attorney fees to a "successful party" in any "action" that

"has resulted in the enforcement of an important right affecting the public interest" if the

claimant establishes certain elements, including a significant benefit has been conferred

on the public. (Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 565.)

Although this code section does not specifically identify attorney fees incurred in an

underlying administrative process, the courts have interpreted the statute to permit

recovery of these fees if the plaintiff shows entitlement to the fees under the statutory

criteria and establishes the administrative "activities were 'useful and necessary and

directly contributed to the resolution of [the lawsuit].' " (Ciani v. San Diego Trust &

Savings Bank (1994) 25 Cal.App.4th 563, 576; see Edna Valley Watch v. County of San

Luis Obispo (2011) 197 Cal.App.4th 1312, 1317-1320 (Edna Valley); Best v. California

Apprenticeship Council (1987) 193 Cal.App.3d 1448, 1455-1462 (Best); Wallace v.

Consumers Cooperative of Berkeley, Inc. (1985) 170 Cal.App.3d 836, 846-849.)

Wolfinger argues that under this standard, his administrative hearing attorney fees

are recoverable because K was required to exhaust this remedy before he could prevail in

the judicial proceeding. Wolfinger asserts that this administrative exhaustion

14
requirement establishes as a matter of law that the fees were necessary and useful to

obtaining a "decision in his favor" in the judicial action and thus recoverable under

section 10962.

This argument is legally flawed. The judicial rule authorizing administrative

hearing fee recovery under Code of Civil Procedure section 1021.5 is based on the

particular statutory language and public policies of section 1021.5. As this court

explained in Best, "the private attorney general doctrine embodied in California's section

1021.5 '. . . rests upon the recognition that privately initiated lawsuits are often essential

to the effectuation of the fundamental public policies embodied in constitutional or

statutory provisions, and that, without some mechanism authorizing the award of attorney

fees, private actions to enforce such important public policies will as a practical matter

frequently be infeasible.' [Citation.] Whether the private enforcement of public policies

is achieved through an administrative and/or a judicial proceeding is irrelevant to the

need to award attorney's fees to encourage the enforcement." (Best, supra, 193

Cal.App.3d at pp. 1459-1460.) In Edna Valley, the court similarly emphasized the strong

public policies in favor of encouraging public interest litigation and ensuring

compensation for attorneys who "successfully bring about the benefits of such policies to

a broad class of citizens." (Edna Valley, supra, 197 Cal.App.4th at p. 1320.) The Edna

Valley court concluded that "[u]nder the circumstances, to say that administrative

proceedings are not part of the 'action,' as that term is used in section 1021.5, would

defeat the purpose of the statute and could discourage many lawsuits in the public

interest." (Ibid.)

15
 The vindication of a claimant's individual rights under section 10962 does not

similarly involve the enforcement of a fundamental public policy or provide a public

benefit. As was the case here, a successful outcome may provide a meaningful private

benefit to the claimant. But, without more, a prevailing party will not have conferred a

valuable advantage to the general public or a large class of persons. Thus, the public

policies identified in Best and Edna Valley supporting a broad statutory interpretation to

include recovery of attorney fees incurred at the administrative level are missing here.

Certainly, to the extent that a successful party on a section 10962 claim proves

entitlement to private attorney general attorney fees under Code of Civil Procedure

section 1021.5, he or she will be entitled to all the fees recoverable under that statute.

(See Land v. Anderson, supra, 55 Cal.App.4th at p. 84.) However, in this case K did not

seek attorney fees under Code of Civil Procedure section 1021.5, nor does the record

support the entitlement to fees under this statute.

Under California law, a successful party is not entitled to attorney fees from the

opposing party, unless a statute or contract specifically provides otherwise. Section

10962 provides for attorney fees to a party who obtains "a decision in his favor" in the

superior court writ proceeding. However, unlike Code of Civil Procedure section 1021.5,

there is nothing in the statutory language or policies underlying section 10962 suggesting

the Legislature intended the state would also bear the burden of paying for attorney

representation in the administrative proceeding. An award of attorney fees for work at

the administrative hearing would penalize the state by significantly increasing its costs of

administering its social service programs. Given the language of the statute, the

16
underlying public policies, and the nature of the administrative hearing process, we

cannot imply the Legislature intended this result.3

Finally, we find unavailing K's lengthy discussion of the attorney fees lodestar

concept. We agree that once a party has established he or she is entitled to fees, the

lodestar method is generally presumed to be the starting point in analyzing the

appropriate amount of attorney fees. (See Ketchum v. Moses (2001) 24 Cal.4th 1122,

1131-1132; 1 Pearl, Cal. Attorney Fee Awards (Cont.Ed.Bar 3d ed. 2014) §§ 8.1-8.10.)

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