Opinion
F083828 F084205
06-02-2023
MATTHEW FORD et al., Plaintiffs and Respondents, v. STANISLAUS COUNTY et al., Defendants and Appellants.
Arata, Swingle, Van Egmond &Heitlinger and Bradley J. Swingle for Defendants and Appellants. Weissburg Law Firm, Diane B. Weissburg and Jerry A. Weissburg for Plaintiffs and Respondents.
NOT TO BE PUBLISHED
APPEAL from a judgment and order of the Superior Court of Stanislaus County, No. CV-21-000017 Sonny S. Sandhu, Judge.
Arata, Swingle, Van Egmond &Heitlinger and Bradley J. Swingle for Defendants and Appellants.
Weissburg Law Firm, Diane B. Weissburg and Jerry A. Weissburg for Plaintiffs and Respondents.
OPINION
DE SANTOS, J.
The nine-month-old son (the child) of respondents, Matthew Ford and Samantha Ford (collectively, "respondents" or "the parents"), sustained skull fractures opined to be inflicted nonaccidentally, and the Stanislaus County Community Services Agency (agency) submitted a "substantiated" report of "physical injury" to the California Department of Justice (DOJ) for inclusion in the Child Abuse Central Index (CACI) under the Child Abuse and Neglect Reporting Act (CANRA) (Pen. Code, § 11164 et seq.). Juvenile dependency proceedings were initiated, and the juvenile court took jurisdiction over the child and his two-year-old sibling under Welfare and Institutions Code section 300, subdivisions (a) (serious physical harm inflicted by a parent) and (b)(1) (failure to protect). Respondents appealed, and in In re T.F. (Sept. 24, 2020, F080366) [nonpub. opn.]) (hereinafter, "the prior appeal"), this court affirmed the juvenile court's findings under Welfare and Institutions section 300, subdivision (b)(1) and reversed the findings under Welfare and Institutions Code section 300, subdivision (a) because the juvenile court indicated it did not find by a preponderance of the evidence that the parents were the perpetrators of the injuries. Respondents subsequently sought to get removed from the CACI or obtain a grievance hearing. The agency declined both to take steps to have respondents removed and to grant respondents a grievance hearing. Respondents successfully obtained their desired relief through a petition for writ of mandate.
The writ court ordered the agency to take the necessary steps to have respondents' names removed from the CACI and modify respondents' listing on the Child Welfare System/Case Management System (CWS/CMS, CWS-CARES; hereinafter CWS/CMS).The writ court subsequently awarded respondents $101,357 in attorney fees and $1,646 in costs under Code of Civil Procedure section 1021.5.
CWS/CMS is a statewide computer system accessible to child welfare agencies. (See Welf. & Inst. Code § 16501.5.)
Appellants Stanislaus County (county), the agency, and Kathryn M. Harwell (collectively, "appellants") appealed from the judgment granting the petition for writ of mandate and the order awarding attorney fees, and this court consolidated the two appeals.
On appeal, appellants contend the writ court's finding that the report on which the parents' CACI listing is based was "not substantiated," triggering their duty under CANRA to notify the DOJ of such, was not supported by sufficient evidence. Appellants further contend the writ court improperly ordered them to modify respondents' listing in CWS/CMS because their request for such relief was untimely. Finally, appellants contend the writ court erred by awarding attorney fees because respondents' action did not meet the requirements of Code of Civil Procedure section 1021.5.
We agree the writ court erred by awarding attorney fees under Code of Civil Procedure section 1021.5 and reverse the order awarding attorney fees. We affirm the judgment granting respondents' writ petition.
RELEVANT LEGAL AUTHORITY
CACI
Under CANRA, an enumerated agency, of which a child welfare agency is one, "shall forward to the [DOJ] a report in writing of every case it investigates of known or suspected child abuse or severe neglect that is determined to be substantiated" for the perpetrator's inclusion in the CACI. (Pen. Code, § 11169, subds. (a) &(c).) Under CANRA, a" '[s]ubstantiated report' means a report that is determined by the investigator who conducted the investigation to constitute child abuse or neglect, as defined in Section 11165.6, based upon evidence that makes it more likely than not that child abuse or neglect, as defined, occurred." (Pen. Code, § 11165.12, subd. (b).) Child abuse and neglect include "physical injury or death inflicted by other than accidental means upon a child by another person" and "the willful harming or injuring of a child or the endangering of the person or health of a child." (Id., § 11165.6.) "Severe Neglect"
Substantiated findings of "general neglect," defined as "the negligent failure of a person having the care or custody of a child to provide adequate food, clothing, shelter, medical care, or supervision where no physical injury to the child has occurred" (Pen. Code, § 11165.2, subd. (b)) are expressly excluded from those which must be reported for potential inclusion in the CACI; only findings of "child abuse or severe neglect" are subject to the CACI reporting obligation. (Id., § 11169, subds. (a) &(c), emphasis added.)
Under CANRA," '[s]evere neglect' means the negligent failure of a person having the care or custody of a child to protect the child from severe malnutrition or medically diagnosed nonorganic failure to thrive. 'Severe neglect' also means those situations of neglect where any person having the care or custody of a child willfully causes or permits the person or health of the child to be placed in a situation such that their person or health is endangered as proscribed by [Penal Code] Section 11165.3, including the intentional failure to provide adequate food, clothing, shelter, or medical care." (Pen. Code, § 11165.2, subd. (a).) Penal Code section 11165.3 defines "the willful harming or injuring of a child or the endangering of the person or health of a child" as "a situation in which any person willfully causes or permits any child to suffer, or inflicts thereon, unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of the child to be placed in a situation in which his or her person or health is endangered." (Id., § 11165.3.)
CACI Hearing Rights
"[A]ny person who is listed on the CACI has the right to a hearing before the agency that requested his or her inclusion in the CACI to challenge his or her listing on the CACI" (Pen. Code, § 11169, subd. (d)), but "[a] hearing ... shall be denied when a court of competent jurisdiction has determined that suspected child abuse or neglect has occurred, or when the allegation of child abuse or neglect resulting in the referral to the CACI is pending before the court." (Id., § 11169, subd. (e), emphasis added.) "A person who is listed on the CACI and has been denied a hearing pursuant to this subdivision has a right to a hearing pursuant to subdivision (d) only if the court's jurisdiction has terminated, the court has not made a finding concerning whether the suspected child abuse or neglect was substantiated, and a hearing has not previously been provided to the listed person." (Id., § 11169, subd. (e).)
Penal Code section 11169, subdivision (h) provides: "If, after a hearing pursuant to subdivision (d) or a court proceeding described in subdivision (e), it is determined the person's CACI listing was based on a report that was not substantiated, the agency shall notify the [DOJ] of that result and the department shall remove that person's name from the CACI."
FACTUAL AND PROCEDURAL BACKGROUND
The Child's Injuries and Related Juvenile Dependency Proceedings
We include a summary of the facts of the juvenile dependency proceedings and related prior appeal to the extent they are relevant to the issues presented in the present appeal. We note that the writ court took judicial notice of the reporter's transcript, the clerk's transcript, and the briefs filed in the prior appeal. Appellants moved to augment the record on appeal to include these documents, and respondents filed a nonopposition to the motion. On this court's own motion, it construed the motion to augment as a motion to take judicial notice of the documents and granted the motion.
On March 9, 2019, respondents brought the child to the hospital after noticing a soft area on the right side of his head. The child was diagnosed with a right parietal depressed skull fracture and a left parietal linear skull fracture. Based on the injuries, child abuse was suspected, and a referral was made to the agency.
The agency's investigations revealed that the child was cared for by a licensed daycare provider Monday through Friday from 8:00 a.m. to 4:00 p.m. The parents and the daycare provider provided possible explanations for the injuries, but the hospital's child abuse expert opined it was unlikely that any of the reported incidents would have caused the fractures.
The child and his two-year-old sibling were taken into protective custody on March 11, 2019. The following day, the agency deemed the allegations of physical abuse against both parents substantiated. The agency submitted a "CHILD ABUSE OR SEVERE NEGLECT INDEXING FORM" (BCIA 8583 form) to the DOJ for each parent. Under "TYPE OF ABUSE," the box for "PHYSICAL INJURY" was checked."NOTICE[S] OF CHILD ABUSE CENTRAL INDEX LISTING," dated March 12, 2019, confirmed both parents had been reported to the DOJ for inclusion in the CACI for the substantiated act of "Physical Injury" against both children.
The other boxes on the BCIA 8583 form were "SEVERE NEGLECT"; "MENTAL/EMOTIONAL SUFFERING"; "SEXUAL ABUSE, ASSAULT, EXPLOITATION"; "WILLFUL HARMING/ENDANGERMENT"; and "UNLAWFUL CORPORAL PUNISHMANT OR INJURY." The form instructs to "Check one or more."
The agency subsequently filed a juvenile dependency petition on behalf of the child and the child's sibling, alleging the child came within the juvenile court's jurisdiction under Welfare and Institutions Code section 300, subdivisions (a), (b)(1), and (e) and that the child's sibling came within the juvenile court's jurisdiction under section 300, subdivisions (b)(1) and (j). Under section 300, subdivision (a), the petition alleged the child "has suffered, or there is a substantial risk that the child will suffer, serious physical harm inflicted nonaccidentally upon the child by the child's parent or guardian." The following "supporting facts" were alleged:
"a-1 On March 9, 2019, the [agency] received a referral stating that 9-month old [child] has skull fractures and does not walk. Mandated Reporting Party reported concern of child abuse due to fractures. Minor has a right side depressed skull fracture and per doctor this type of fracture is caused by force. Minor has a left linear skull fracture. Both fractures are located on the parietal side. Minor has a right side hematoma. No other marks or bruises were observed. Minor is being admitted to the hospital.
"a-2 On March 11, 2019, the [child] was found to have bilateral skull fractures caused by nonaccidental trauma. [The child] has a mildly depressed right parietal skull fracture, nondisplaced hairline fracture at the left parietal skull, and a thin right parietal scalp hematoma. There was an area of bogginess to the right occipital scalp. He had a fading, light green bruise over the spinous processes mid back.
"a-3 The parents, Samantha and Matthew Ford, provided multiple explanation for [the child]'s injuries; however, none of the explanations can explain the bilateral skull fractures. The presence of a depressed skull fracture is suggestive of greater force than described in the parents' explanations. Further, the parents' accounts of the injuries do not explain the contralateral symmetric fracture to the left side of the skull.
"a-4 Child Abuse Expert, Catherine Albin, reported that the presence of [the child]'s bilateral fractures are distinctly associated with nonaccidental trauma and that [the child]'s injuries are consistent with a right handed blow to the left side of his head and deceleration impact to the right side of his head. Dr. Albin reports that the diagnosis is nonaccidental trauma."
Under Welfare and Institutions Code section 300, subdivision (b)(1), the petition alleged the child and his sibling "ha[d] suffered, or there is a substantial risk that the child[ren] will suffer, serious physical harm or illness" "as a result of the failure or inability of his or her parent or legal guardian to supervise or protect the child adequately" and "as a result of the willful or negligent failure of the child[ren]'s parent or legal guardian to supervise or protect the child[ren] adequately from the conduct of the custodian with whom the child[ren] ha[ve] been left." Supporting facts "b-1" through "b-4" were identical to supporting facts "a-1" through "a-4."
The "supporting facts" under Welfare and Institutions Code section 300, subdivision (b)(1) also included "b-5," which alleged Samantha Ford had a history of postpartum depression. This allegation was struck by the juvenile court at the jurisdictional hearing.
Under Welfare and Institutions Code section 300, subdivision (e), the petition alleged the child was "under the age of five and has suffered severe physical abuse by a parent, or by any person known by the parent, and the parent knew or reasonably should have known that the person was physically abusing the child." Supporting facts "e-1" through "e-4" were identical to supporting facts "a-1" through "a-4."
Finally, the petition alleged the child's sibling came within the court's jurisdiction under Welfare and Institutions Code section 300, subdivision (j) because the child "suffered nonaccidental trauma, putting [his sibling] at substantial risk for abuse or neglect."
In late March 2019, Samantha Ford submitted a "Request for Review of Child Abuse Investigation" to the agency. The agency responded in April, indicating the agency had determined that her request could "not be heard through this process," because the matter was pending before the court. The letter went on to state, "If the charges are dropped or you are found not guilty, then you can request a new hearing."
There is no evidence on the record before us that criminal charges related to the child's injuries were ever brought against either respondent. Law enforcement investigated the incident on March 10, 2019, and in the investigating officer's report related to that investigation, he concluded that, at the time the report was written, he and the investigating social worker "did not believe that there was any child abuse occurring in the residence." Law enforcement assisted with taking the children into protective custody on March 11, 2019, though there is no evidence of further criminal investigation.
Following a 10-day jurisdictional hearing, the juvenile court found both children came within its jurisdiction under Welfare and Institutions Code section 300, subdivisions (a) and (b)(1) and struck the allegations under section 300, subdivisions (e) and (j).
In ruling on the Welfare and Institutions Code section 300, subdivision (e) allegations, the juvenile court explained "even the medical testimony indicated that [the injuries] wouldn't have necessarily been obvious" and noted there was no evidence that the injuries occurred at different times. The court concluded, "I don't believe there is sufficient evidence based upon a preponderance of the evidence that the parents knew or reasonably should have known that their child was being abused. So the Court will strike the [Welfare and Institutions Code section 300, subdivision] (e) allegation."
In ruling on the Welfare and Institutions Code section 300, subdivision (a) allegation, the juvenile court noted the parents had "care and control of both of their children but the children were also out of their control for a significant period of times." The court noted it did not know if the injuries may have happened in day care and that it "worrie[d]" the court "when the parents say nobody could have done this intentionally to" the child. The court went on to explain it believed, based on the totality of the circumstances, it was "more likely than not that the injury was nonaccidental." The court went on to say, "I am not by any means saying I believe a hundred percent that the parents caused this injury, but what I am saying is I believe this injury is nonaccidental and that it happened while the child was in the parents' care and control, and if it wasn't the parents that created this injury, than it was by somebody else." The juvenile court further explained it was sustaining the section 300, subdivision (a) allegation "based on the fact that there was serious physical harm that was inflicted non-accidentally by someone. Again, I don't know who. Again, I'm not saying it was the parents. I'm not saying it wasn't the parents, but the Court is going to find it is a nonaccidental injury."
The juvenile court amended the portion of the supporting facts that stated, "He had a fading, light green bruise" to read "He was reported by one of the doctors to have had a fading light green bruise" explaining "It is concerning to me that no one else noted it."
The court found the children came within its jurisdiction under Welfare and Institutions Code section 300, subdivision (b)(1) and struck the section 300, subdivision (j) allegation because it was finding both children were described by section 300, subdivisions (a) and (b).
Prior Appeal
The parents appealed the dispositional order, specifically contending the evidence was insufficient to support the court's jurisdictional findings the children came within the court's jurisdiction under both Welfare and Institutions Code section 300, subdivisions (a) and (b).
This court issued an opinion in the prior appeal on September 24, 2020, affirming the juvenile court's Welfare and Institution Code section 300, subdivision (b)(1) findings. We relied on case law establishing that when a child suffers nonaccidental injury and a perpetrator is unable to be identified because he or she has several caregivers, jurisdiction under section 300, subdivision (b) is appropriate. This court concluded that because the juvenile court found the child had suffered nonaccidental injury, there was no reasonable explanation for the injuries, the parents could not definitively be ruled out as perpetrators, and the parents were dismissive of medical opinion regarding what happened to the child, the juvenile court could reasonably conclude the children were at risk of suffering future physical harm in the parents' care at the time of the jurisdictional hearing.
As to the Welfare and Institutions Code section 300, subdivision (a) findings, however, this court found the juvenile court's underlying factual findings did not support assertion of jurisdiction under that particular subdivision. This court interpreted section 300, subdivision (a) as requiring a finding that the parents were the perpetrators of the physical abuse, rejecting the agency's assertion to the contrary. Because the juvenile court signaled through its explanations for its rulings that it did not find by a preponderance of the evidence that the parents personally inflicted the injury, this court concluded its section 300, subdivision (a) finding, that the parents personally inflicted the injuries, could not stand as a matter of law. In other words, the underlying factual findings by the juvenile court, to which we gave deference, were incongruent with its ultimate finding that the children came within section 300, subdivision (a).
This court exercised discretion to review jurisdictional findings under both subdivisions based on the parents' request and assertion they had been reported to the CACI, and a reversal of the Welfare and Institution Code section 300, subdivision (a) findings would assist them in challenging their inclusion in the database. This court took no position on the effect of the opinion on whether the parents would successfully be able to challenge their inclusion on the CACI but assented to address the section 300, subdivision (a) allegations "[i]n the abundance of caution."
No party sought review of this court's decision. Remittitur was issued on November 24, 2020.
Respondents' Efforts to Get Their Names Removed from the CACI
In light of this court's opinion in the prior appeal, respondents attempted, through contacting appellants, to be removed from the CACI. In a letter dated November 27, 2020, from respondents' counsel to appellants, respondents demanded appellants submit a revised BCIA 8583 form for both respondents to the DOJ to remove them from the CACI, pursuant to Penal Code section 11169, subdivision (h), and to modify their records in the CWS/CMS to reflect the physical abuse report as "unfounded" as they "were reported to CACI for the WIC §300(a) finding only."
In a letter dated December 16, 2020, addressed to respondents' counsel, county counsel indicated the agency would not comply with respondents' demands. The letter explained that because this court affirmed the Welfare and Institution Code section 300, subdivision (b) allegations, "there was no judicial determination of factual innocence of all the investigated allegations that supported CSA's decision to refer the Ford's names to the DOJ for listing on the CACI." The letter asserted that "the substantiated physical abuse referral is still proper," and the "Emergency Response substantiated finding of physical abuse does not require the identification of the perpetrator; what is important to note is that both Samantha and Matthew Ford were the custodial parents responsible for care and safety of their two children at the time of the referral that le[]d to the substantiated physical abuse allegations." The letter further indicated "no grievance hearing is warranted in this matter."
In a letter dated December 18, 2020, addressed to county counsel, respondents' counsel argued that the CACI report was based on physical abuse only, not neglect, and as such were again demanding to be removed from the CACI or granted a grievance hearing on the neglect allegation, pursuant to Penal Code section 11169, subdivision (d).
County counsel responded in a letter dated December 22, 2020, indicating that because the juvenile court found the Welfare and Institutions Code section 300, subdivision (b) allegation true, and this court affirmed that finding, "there is no court finding that the allegations were unsubstantiated"; therefore, a grievance hearing must be denied under Penal Code section 11169, subdivision (e). County counsel again stated that "the emergency response substantiated finding of physical abuse does not require the identification of the perpetrator."
Respondents' Petition for Writ of Mandate
Respondents subsequently petitioned for a writ of traditional mandate under Code of Civil Procedure section 1085 against appellants. Specifically, they sought an order for appellants "to notify the DOJ that the report of child abuse filed with the DOJ involving [respondents] has been determined to be unfounded, and request their immediate removal from the CACI database" and "that the [CWS/CMS] be updated and modified to remove the substantiation of physical abuse allegations and to update those databases as well." In the alternative, respondents requested the court order appellants to conduct a grievance hearing pursuant to Penal Code section 11169, subdivisions (d) and (e). The petition alleged that Matthew Ford was a fifth grade teacher and Samantha Ford worked with special education students, and both were at risk of suffering irreparable harm and injury, including loss of their jobs if writ relief were not granted. Respondents also sought reimbursement of attorney fees under Code of Civil Procedure section 1021.5.
Respondents sought, in the alternative, a writ of administrative mandamus under Code of Civil Procedure section 1094.5. However, the writ court ultimately granted relief under section 1085, so we focus our discussion on that cause of action. No party contends on appeal that the writ court erred by proceeding under section 1085 rather than section 1094.5.
On January 4, 2021, respondents filed a "VERIFIED PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS AND/OR MANDATE (C.C.P. § 1094.5; C.C.P. § 1085); CONSOLIDATED WITH MOTION FOR ATTORNEY FEES, CODE OF CIVIL PROC. §§ 1021.5; 1033.5(a)(10), AND GOV. CODE § 800), BASED ON PENAL CODE § 11165-11169, et seq.; DECLARATION OF SETH GORMAN; DECLARATION OF DIANE B. WEISSBURG; DECLARATION OF SAMANTHA FORD; DECLARATION OF MATTHEW FORD; EXHIBITS, AND PROPOSED ORDER." On March 3, 2021, they filed a "FIRST AMENDED CONSOLIDATED VERIFIED PETITION OF WRIT OF ADMINISTRATIVE MANDAMUS AND/OR MANDATE (C.C.P. § 1094.5; C.C.P. § 1085) AND MOTION FOR ATTORNEY FEES, MEMORANDUMS OF POINTS AND AUTHORITIES, CODE OF CIVIL PROC. §§ 1021.5; 1033.5(a)(10), AND GOV. CODE § 800), BASED ON PENAL CODE § 11165-11169, et seq." The court ultimately ruled on respondents' first amended petition filed on March 3, 2021, and supporting documents filed thereafter, so all references to respondents' petition is to the first amended petition filed on March 3, 2021.
Appellants opposed the petition and motion for attorney fees. In addition to arguing that respondents were not procedurally entitled to relief, they argued that the report to the CACI was mandatory as, even though the parents were deemed not to be the perpetrators of the injury, the incident constituted "severe neglect" as defined in CANRA because physical injury occurred. Further, because the juvenile court had determined the children came within its jurisdiction under Welfare and Institutions Code section 300, subdivision (b), respondents were properly denied a hearing under Penal Code section 11169, subdivision (e) as "a court of competent jurisdiction ha[d] determined that child abuse or neglect has occurred."
The court issued a tentative ruling granting the petition to order appellants take action to remove respondents' names from the CACI. Appellants requested a hearing based on the tentative ruling. At the hearing, appellants' counsel argued that the evidence elicited at the juvenile dependency jurisdictional hearing substantiated a finding of "willful neglect" and the juvenile court's ruling obligated the agency to report the incident to the CACI, as it included a finding of nonaccidental injury. Counsel further argued that this court's decision reversing the finding under Welfare and Institutions Code section 300, subdivision (a) had no effect on the "substantiated report" under section 300, subdivision (b) and thus had no effect on the agency's obligation.
After hearing argument, the court took the matter under submission and subsequently ordered supplemental briefing. Among the issues the court ordered the parties to discuss was: "What evidence in the record supports the County's assertion that [respondents] engaged in conduct that could be deemed 'severe neglect' within the meaning of Penal Code section 11165.2, subdivision (a)? (See Pen. Code, § 11169, subd. (a) [authorizing report to CACI in cases of 'known or suspected child abuse or severe neglect'].)"
Respondents argued in their supplemental briefing that because Penal Code section 11165.2, subdivision (a) required that they "willfully" caused or permitted the endangerment of their children, and there was no court finding of willful conduct, particularly as the juvenile court found the evidence did not support a finding that the parents knew or should have known of the abuse, there was no evidence that supported the assertion they engaged in conduct that could be deemed "severe neglect."
In appellants' supplemental briefing, they argued that because the record supported a finding that the injuries were caused by nonaccidental means, the "willful" requirement under Penal Code section 11165.2, subdivision (a) was met.
The writ court conducted a second hearing. The court indicated it accepted appellants' claim that the child's injuries were inflicted by nonaccidental means, and that claim did not appear to be in dispute. The court explained it did not, however, "see any findings by either the appellate court or the juvenile court here though that there are any facts that would indicate that the Fords here in this case are guilty of severe neglect and willful injury."
Appellants' counsel responded that the court was bound by the juvenile court's findings the injuries were inflicted by nonaccidental means and that "non[]accidental is synonymous with willful or intentional" and therefore respondents' conduct constituted "severe neglect" within the meaning of CANRA. Appellants' counsel asserted that because the juvenile court found the injuries were inflicted while in the custody of respondents, then it follows that they "permit[ted]" or "allow[ed]" the serious physical injury. Appellants' counsel further asserted that the word "willfully" in the phrase "willfully causes or permits" in the definition of "severe neglect" only modified "causes," not "permits" (Pen. Code, § 11165.2, subd. (a)). Counsel further asserted that the parents permitted the child to sustain severe physical injury, that willfulness was not required, and that the definition of "severe neglect" was satisfied.
The court took the matter under submission following the second hearing.
The Writ Court's Written Ruling Granting Respondents' Petition
The writ court issued a written ruling. At the outset of its ruling, the writ court stated it was applying an independent judgment standard of review as set forth in Saraswati v. County of San Diego (2011) 202 Cal.App.4th 917, 928 because the action involved "fundamental vested rights." The writ court explained it was granting relief under the traditional mandamus statute, Code of Civil Procedure section 1085.
First, the court concluded respondents had shown they had no" '" 'plain, speedy, and adequate' alternative remedy" '" as they had "repeatedly asked to have their names removed from the CACI to no avail, and those decisions are not appealable." Next, the court concluded respondents had shown they had a" '"' "clear, present and beneficial right" '" '" to appellants' performance of acting to remove them from the CACI "because they have an interest in seeing their names removed from a registry that could cause disruption to their professional and/or social lives." Finally, the court concluded that respondents had shown appellants had"' "a clear, present ... ministerial duty" '" to notify the DOJ that appellants" 'CACI listing was based on a report that was not substantiated'" pursuant to Penal Code section 11169, subdivision (h) after this court issued its opinion reversing the juvenile court's findings under Welfare and Institutions Code section 300, subdivision (a).
As to the last element, the court explained that "[a] report to the CACI is only authorized in cases involving 'known or suspected child abuse or severe neglect that is determined to be substantiated,'" citing Penal Code section 11169, subdivision (a). The court rejected appellants' "suggestion that the adverb 'willfully' modifies 'causes' but not 'permits'" in the definition of "severe neglect" in section 11165.2, subdivision (a).
The court reasoned that to avoid a "strained and clumsy" interpretation of the phrase "willfully causes or permits" in favor of an "ordinary and popular" interpretation, the court must interpret "willfully" as modifying both "causes" and permits because" '[m]ost readers expect the first adjective in a series of nouns or phrases to modify each noun or phrase in the following series unless another adjective appears....' (Ward General Ins. Services, Inc. v. Employers Fire Ins. Co. (2003) 114 Cal.App.4th 548, 554.)"
The writ court further explained that, at the time the juvenile court sustained the Welfare and Institutions Code section 300, subdivision (a) allegations, the CACI report was justified because the allegations "gave cause to think that [respondents] had inflicted 'nonaccidental' harm on their child [citation], which would likely constitute the 'willfully caus[ing]' of harm to their child within the definition of 'severe neglect' in Penal Code section 11165.2, subdivision (a)." When this court reversed the Welfare and Institutions Code section 300, subdivision (a) findings, however, "in order for the County to continue deeming the report against [respondents] 'substantiated' after the opinion on appeal, there must have been evidence that [respondents] not only permitted, but willfully permitted, their child to suffer injury."
The writ court reasoned that Welfare and Institutions Code section 300, subdivision (b)(1) findings can be based on actions of parents that are only negligent, and are "not proof of a willful act and therefore not proof that [respondents] committed 'severe neglect,' as required for submission to the CACI" and "therefore cannot be, or cannot properly be, the sole 'report' on which [respondents'] 'CACI listing was based.' (Pen. Code, § 11169, subd. (h).)" As such, when this court reversed the Welfare and Institutions Code section 300, subdivision (a) findings, the writ court reasoned, it" 'determined [that respondents'] CACI listing was based on a report that was not substantiated' because of the facts and posture of this particular case."
The writ court ordered the county to comply with Penal Code section 11169, subdivision (h) as to respondents, in that it was "to notify the [DOJ] that the CACI report regarding [respondents] has been 'determined [to be] based on a report that was not substantiated ... and the department shall remove [respondents'] name[s] from the CACI.' [Citation.]." (Emphasis omitted.) The court further ordered the county "[a]s requested in the first amended petition," "to assist in updating and modifying [CWS/CMS] to remove the substantiation of physical abuse allegations against [respondents]." The court dismissed the petition as to appellant Kathryn Harwell, who the court deemed as immune from liability under section 11172. The court ordered respondents to refile their motion for attorney fees. A notice of entry of judgment was filed on December 2, 2021.
Motion for Attorney Fees
Respondents subsequently refiled their motion for attorney fees and costs in the amount of $111,168.99 under Code of Civil Procedure section 1021.5. Respondents argued that the action met the requirements for relief under section 1021.5 because the action "resulted in a significant benefit conferred on the general public or a large class of persons" as the writ court's decision "enforced and clarified the correct interpretation of CACI statutes and regulations"; that "a large class of persons benefitted from this decision"; and "the cost of suit to [respondents] was out of proportion to the personal benefit they received." (Unnecessary capitalization and emphasis omitted.)
Respondents also sought attorney fees under Government Code section 800. As the court ultimately denied attorney fees under this provision, and this request is not relevant to any of the issues on appeal, we focus our discussion on the proceedings as they relate to the Code of Civil Procedure section 1021.5 issues.
Appellants opposed respondents' claim that they were entitled to attorney fees under Code of Civil Procedure section 1021.5, arguing in large part that respondents' action conferred only a personal benefit to them rather than a class of persons.
At a hearing on the motion, the court explained "it is plain to this court that challenging CACI inclusion does represent an important right that affects the public interest." The court further explained there was "a strong interest in maintaining and developing an accurate CACI" and "in making sure those who are guilty are on the list but at the same time, an equally important interest in allowing those not guilty to liberate themselves from the list." The court stated "the list is a stigma at its very core, and the public is best served by a list which is reliably accurate. Thus, [respondents] here are essentially pursuing the enforcement of an important right affecting all persons who might find themselves wrongfully ensnarled in a CACI report." The court explained that based on that reasoning, it was granting respondents' motion. In a written ruling, the court concluded respondents "were successful in an action which has resulted in the enforcement of an important right affecting the public interest, and which conferred a significant benefit to a large class of persons." The court also granted appellants' request to disallow certain fees.
A notice of entry of judgment of the order granting respondents' motion for attorney fees was filed on March 21, 2022. The final award after the court considered supplemental declarations accounting for the stricken fees, was $101,357 in fees and $1,646.64 in costs for a total judgment of $103,003.64.
DISCUSSION
I. The Writ Court's Order that Appellants Notify the DOJ that the CACI Report Has Been Determined to be Based on a Report That was Not Substantiated
Appellants contend the writ court erred by ordering appellants to take action to ensure respondents' names were removed from the CACI because the evidence did not support the trial court's conclusion that the report of "severe neglect" was "not substantiated." Appellants' contention is not well taken.
Because the writ court applied an independent judgment standard of review of an administrative decision, we" 'need only review the record to determine whether the trial court's findings are supported by substantial evidence.'" (Saraswati v. County of San Diego, supra, 202 Cal.App.4th at p. 926, fn. 7.) We independently review questions of law. (CV Amalgamated LLC v. City of Chula Vista (2022) 82 Cal.App.5th 265, 280.)
As set forth above, if after a grievance hearing (Pen. Code, § 11169, subd. (d)) or after a court proceeding where a court of "competent jurisdiction" determines the issue of whether the suspected child abuse or neglect has occurred (id., § 11169, subd. (e)), "it is determined the person's CACI listing was based on a report that was not substantiated, the agency shall notify the [DOJ] of that result and the department shall remove that person's name from the CACI" (id., § 11169, subd. (h), emphasis added).
Thus, the question for the writ court was whether the findings of the juvenile court, as reviewed by this court, either (1) established a "substantiated" report of "severe neglect," thereby justifying appellants' report of respondents for inclusion on the CACI, or (2) whether those findings rendered a report of "severe neglect" "not substantiated," thereby triggering appellants duty under Penal Code section 11169, subdivision (h) to take steps to get respondents' names removed from the CACI. The narrower factual question was whether the juvenile court's findings supported a "substantiated" report that the parents "willfully cause[d] or permit[ed] the person or health of the child to be placed in a situation such that their person or health is endangered" (id., § 11165.2, subd. (a)). We conclude the writ court's conclusion that the juvenile court's findings rendered a report of "severe neglect" "not substantiated" within the meaning of CANRA, necessitating appellants' action to get respondents names' removed, was supported by substantial evidence.
We must note this matter comes before us in a unique and somewhat convoluted procedural stance. Appellants denied respondents a grievance hearing under Penal Code section 11169, subdivision (d) on the issue of whether the facts of the case constitute "severe neglect" within CANRA, contending in effect it was not proper because the juvenile court's jurisdictional hearing was a court proceeding under Penal Code section 11169, subdivision (e). Appellants continue to insist on appeal that a Penal Code section 11169, subdivision (d) grievance hearing is not warranted under the circumstances of this case. While respondents requested alternative relief in the form of a grievance hearing, the writ court, by declining to order such a hearing, implicitly concluded it would have been inappropriate. We do not take a position here as to whether respondents were statutorily barred from or statutorily entitled to a hearing under Penal Code section 11169, subdivision (d) as to whether a "severe neglect" report was substantiated. ("A hearing requested pursuant to subdivision (d) shall be denied when a court of competent jurisdiction has determined that suspected child abuse or neglect has occurred" but a person who has been denied a hearing has the right to one "if the court's jurisdiction has terminated" and "the court has not made a finding concerning whether the suspected child abuse or neglect was substantiated." [Pen. Code, § 11169, subd. (e).].) Such a determination is not necessary for us to resolve the issues on appeal. No party on appeal asserts that the writ court erred by failing to order a grievance hearing, and no party argues the matter must be remanded for one. For the purpose of this appeal, we accept the parties' apparent agreement that the juvenile dependency jurisdictional hearing was a court proceeding withing the meaning of Penal Code section 11169, subdivision (e), and that the parties and writ court (as well as this court) are therefore bound by the findings made by the juvenile court at that hearing as it pertains to whether a report of "severe neglect" was substantiated or not.
It is undisputed that, after this court's previous opinion became final, the only remaining jurisdictional finding was under Welfare and Institutions Code section 300, subdivision (b). The parties appear to agree that since a general finding that a child comes within a court's jurisdiction under section 300, subdivision (b) can include both willful and negligent acts or omissions, this general finding alone cannot substantiate a "severe neglect" report as defined by CANRA. Appellants do not on appeal, as they did below, advance the specific argument that "willfully" only modifies "causes" and therefore no willful conduct is required for a "severe neglect" finding. They concede a finding that a child comes within the juvenile court's jurisdiction under Welfare and Institutions Code section 300, subdivision (b)(1) does not equate to a finding that the parents engaged in "severe neglect" within the meaning of CANRA. Instead, appellants contend the underlying facts of the case supported a finding of "severe neglect."
Contrary to appellants' argument, however, the more specific "supporting facts" alleged by the agency and sustained by the juvenile court do not compel a finding of "willful" conduct nor, accordingly, "severe neglect." The "supporting facts" objectively describe the injuries sustained by the child (b-1, b-2); allege that the parents provided explanations of the injuries, but none could medically explain the injuries (b-3); and that the child abuse expert opined the injuries were inflicted by nonaccidental trauma (b-4). These "supporting facts" notably do not allege a specific willful act or omission on the part of the parents. Rather, they supply circumstantial evidence that, in our view, was intended to support an inference that the parents personally inflicted the injuries on the child, which appeared to be the agency's initial theory at the outset of the juvenile dependency case. The juvenile court, however, declined to conclude that the parents inflicted the injuries. Instead, as we explained in our opinion in the prior appeal, the juvenile court indicated it could not find by a preponderance of the evidence the parents personally inflicted the injuries nor that they knew or should have known some other person was inflicting the injuries. The "supporting facts" sustained by the juvenile court paired with the facts the juvenile court stated it could not sustain by a preponderance of the evidence serve as a reasonable basis for the writ court's conclusion that the juvenile court's findings regarding respondents' behavior did not constitute substantiation for a report of "severe neglect."
At oral argument, respondents cited our Supreme Court's decision in In re D.P. (2023) 14 Cal.5th 266 (D.P.). In D.P., the juvenile court took jurisdiction over an infant pursuant to section 300, subdivision (b)(1) under similar circumstances to those in the present case-the infant had sustained an unexplained fracture that the juvenile court did not believe was inflicted by the parents. (D.P., at pp. 274-275.) The parents challenged the jurisdictional findings on appeal, but jurisdiction was terminated while the appeal was pending, and the Court of Appeal dismissed the appeal as moot. (Id. at pp. 275-276.) Our Supreme Court granted review and, as relevant here, addressed the father's argument that the issue was not moot because he might be reported to the CACI. (Id. at p. 280.) The D.P. court rejected the father's argument because there was no evidence he had been reported nor that the allegations against him were reportable, in part reasoning that his conduct was a "poor fit for 'severe neglect'" as defined by CANRA. (D.P., at pp. 280281.) The D.P. court concluded the father's CACI claim was "too speculative to demonstrate a specific legal consequence that a favorable judgment could redress." (Id. at p. 282.) D.P. represents a much different procedural stage than the present case, and while we are familiar with D.P. and recognize some factual and legal similarities to the issues presented in the present case, it was not instrumental in informing our analysis in the present appeal.
Accordingly, the writ court's conclusion that the factual findings made by the juvenile court, as reviewed by this court, rendered the CACI report "not substantiated" compelling appellants to act pursuant to Penal Code section 11169, subdivision (h) was supported by substantial evidence.
We reject appellants' arguments to the contrary. Though appellants no longer take the express position, as they did below, that a finding of "severe neglect" does not require a "willful" act or omission, they advance substantively the same arguments.
Appellants point out that Penal Code section 11165.2, subdivision (b) defines "general neglect" as "the negligent failure of a person having the care or custody of a child to provide adequate food, clothing, shelter, medical care, or supervision where no physical injury to the child has occurred but the child is at substantial risk of suffering serious physical harm or illness." They posit that because physical injury occurred in this case, it cannot qualify as "general neglect" and therefore must be "severe neglect." We decline to make the same extrapolation. All Penal Code section 11165.2, subdivision (b) does is define "general neglect." It does not mean that all instances where physical injury occurs are "severe neglect" within the meaning of the statute and does not excuse an investigating agency from substantiating the specific elements under CANRA's definition of "severe neglect," which includes willful conduct.
Appellants also contend that "willful" and "nonaccidental" are synonymous and therefore because the child sustained nonaccidental injury or injury inflicted willfully, the willful element of "severe neglect" has been met, regardless of whether respondents were the perpetrators. This argument ignores that the plain language of the statute requires the person who is being reported for inclusion in the CACI to commit the "willful" conduct.
It appears appellants are suggesting no mental state on the part of an individual reported for inclusion in the CACI is required and that parents are strictly liable as child abusers under CANRA for any physical injury to their children inflicted by another person. This suggestion is contrary to the plain language of the statute (which, as we have explained, requires willful conduct) as well as the purpose behind CANRA. CANRA was "designed to bring the child abuser to justice and to protect the innocent and powerless abuse victim." (Planned Parenthood Affiliates v. Van de Kamp (1986) 181 Cal.App.3d 245, 258.) Its placement in the Penal Code "supports an inference that it was aimed at criminal conduct, and that the Legislature expected its application to be guided by at least some of the substantive principles of criminal law." (Gonzalez v. Santa Clara County Dept. of Social Services (2014) 223 Cal.App.4th 72, 89.) The CANRA definitions of child abuse and neglect "have been borrowed almost verbatim from the statutes defining two forms of criminal child abuse." (Gonzalez, at p. 85.) For example, as relevant to the present case, Penal Code section 273a "makes it a crime to 'willfully cause[] or permit[] any child to suffer, or inflict[] thereon unjustifiable physical pain or mental suffering.'" (Gonzalez, at p. 85.) As a crime requires a union of an act and a criminal mental state, meaning intent or criminal negligence (Pen. Code, § 20; People v. Morales (2001) 25 Cal.4th 34, 45), we reject appellants' suggestion that a parent is per se reportable for inclusion in the CACI if another person inflicts an injury upon their child where a willful act or omission on the part of the parent is not substantiated.
The only specific act or omission by the parents that appellants contend was "willful" is their "refusal to consider or investigate the medical professionals' conclusion that [the child] had suffered non[]accidental blows to the head of great force." While this behavior certainly justified the juvenile court's findings under Welfare and Institutions Code section 300, subdivision (b), we cannot say it compelled a finding of "severe neglect" within the meaning of CANRA, as it occurred after the injuries were inflicted. As appellants contend the physical injuries sustained by the child were the reason for the CACI report, this argument presents as an ad hoc justification for reporting respondents for inclusion in the CACI and is not persuasive.
For the foregoing reasons, the writ court did not err by finding the CACI report was determined to be "not substantiated" triggering the agency's duty under Penal Code section 11169, subdivision (h).
II. The Writ Court's Order That Appellants Must Assist in Updating and Modifying CWS/CMS
Appellants next contend "[t]he trial court did not have the authority to issue an order on [r]espondents' request to be removed from the CWS/CMS and CWS-Cares as this relief was not requested until after the hearing on [r]espondents' Writ." They allege in their statement of facts the request was made for the first time in their supplemental brief filed after the first hearing.
In response, respondents point out that the record demonstrates the challenged relief was requested consistently throughout the underlying proceedings, including for the first time in the letter to the agency dated November 27, 2020, and subsequently in their initial petition, their first amended petition, and in a supplemental memorandum.
Appellants fail to respond to this in their reply brief. More puzzling, however, is the record demonstrates that appellants attempted to litigate this very issue below, asserting in their supplemental brief after the first hearing on respondents' petition that respondents had not raised the issue until their supplemental brief. At that time, respondents responded, as they do here, by pointing out they had requested the relief in their first amended petition. When, in open court, the trial court pointed out the request was made in the petition, appellants appeared to withdraw their objection.
On page 78 of the reporter's transcript, the following colloquy took place: "[THE COURT:] For clarification .. [appellants' counsel], I know that you had made an argument in your papers that the court would not have any jurisdiction to remove the [respondents] not only from CACI but as well as the CWS/CMS and CWS-CARES .. database because it wasn't brought forward previously. It's the court's position that it was part of the first amended petition as cited by [respondents' counsel].... I'll give you one opportunity to discuss that if you feel that that needed to be discussed. "[APPELLANTS' COUNSEL]: Yeah, I'll just briefly touch on that. [¶] The only other thing I would want to bring up is just as I had already touched on what [appellants] believe this court's role is, and it's a limited role as part of a mandate proceeding. But in terms of the request made in the petition-and I'm not going to argue that that would not be a component of it, I think it should have been brought more clearly in the petition, but I respect the court's finding on that." (Emphasis added.)
As the record belies appellants' claim, and they do not further elaborate on what alleged error occurred, we reject this claim with no further discussion.
III. Attorney Fees Under Code of Civil Procedure Section 1021.5
Code of Civil Procedure section 1021.5 "is a codification of the private attorney general doctrine," which is an exception to the usual rule that the parties to a lawsuit bear their own attorney fees. (Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311, 317; Olson v. Automobile Club of Southern California (2008) 42 Cal.4th 1142, 1147.)" '[T]he private attorney general doctrine "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." '" (Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 565.) "[T]he fundamental objective of the private attorney general doctrine of attorney fees is' "to encourage suits effectuating a strong [public] policy by awarding substantial attorney's fees ... to those who successfully bring such suits and thereby bring about benefits to a broad class of citizens." '" (Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 933 (Woodland Hills).)
The award of attorney fees is proper under Code of Civil Procedure section 1021.5 if "(1) plaintiffs' action 'has resulted in the enforcement of an important right affecting the public interest,' (2) 'a significant benefit, whether pecuniary or nonpecuniary has been conferred on the general public or a large class of persons' and (3) 'the necessity and financial burden of private enforcement are such as to make the award appropriate.'" (Woodland Hills, supra, 23 Cal.3d at p. 935.) Each of these requirements must be met to warrant an award of attorney fees under Code of Civil Procedure section 1021.5. (Woodland Hills, at pp. 933-934.)
"The intent ... is not 'to punish those who violate the law but rather to ensure that those who have acted to protect public interest will not be forced to shoulder the cost of litigation.'" (Friends of Spring Street v. Nevada City (2019) 33 Cal.App.5th 1092, 1107; Doe v. Westmont College (2021) 60 Cal.App.5th 753, 763.)
The parties disagree about what standard of review applies: abuse of discretion or de novo review. We need not resolve this dispute, as even under the more deferential abuse of discretion standard, we conclude the writ court's award of attorney fees must be reversed.
Appellants contend the writ court's decision only affects whether respondents' names appear on the CACI and "[t]here is no class of people who would benefit, or be otherwise affected, by this Court's decision." Appellants assert the determination made below was a factual one that would not affect whether any other individuals' names appear on the CACI. We agree with appellants and conclude the trial court abused its discretion by concluding the action "conferred a significant benefit to a large class of persons."
As appellants point out, our high court explained in Adoption of Joshua S. (2008) 42 Cal.4th 945, that since California's endorsement of the private attorney general doctrine, the doctrine has been applied primarily to cases where "public interest litigation obtained a substantial benefit by causing a change in the defendant's behavior, whose actions or failure to act was somehow impairing the statutory or constitutional rights of the public or a significant class of people." (Id. at pp. 954-955 &fn. 3.) "[T]he 'significant benefit' that will justify an attorney fee award need not represent a 'tangible' asset or a 'concrete' gain but, in some cases, may be recognized simply from the effectuation of a fundamental constitutional or statutory policy." (Woodland Hills, supra, 23 Cal.3d at p. 939.) But not all litigation that effectuates such policies will justify an attorney fee award. (Ibid.) Courts must instead make "a realistic assessment, in light of all the pertinent circumstances, of the gains [that] have resulted in a particular case" to determine whether a Code of Civil Procedure section 1021.5 attorney fee award is warranted. (Id. at p. 940.)
The writ court asserted that the action affected "all persons who might find themselves wrongfully ensnarled in a CACI report" without further explanation. Respondents contend that if it were not for the writ decision, "child welfare agencies, including [the agency], would continue to deprive parents unlawfully placed and/or maintained in CACI of hearings and/or CACI removal on an ongoing basis." They further assert, "The decision provided a benefit not only to [respondents], but to every other parent incorrectly listed or maintained in CACI in the state." We are not convinced.
Respondents do not adequately explain how the underlying writ proceedings affected or will likely affect any other parents besides themselves. Here, the underlying action resulted in no published authority. There is no evidence the litigation effected any county, much less state, policy changes. Though we find appellants' substantive contentions lack merit, there is no evidence on this record that their actions represented a systematic misinterpretation of the relevant laws. The underlying case presented a unique factual and procedural situation, and we have no evidence before us similar situations had happened before or are likely to happen in the future. The record simply does not support an assertion that the underlying action will have any wider effect than the removal of respondents' names from the CACI, and the writ court abused its discretion by concluding otherwise.
Respondents assert the award is supported by Samantha C. v. State Dept. of Developmental Services (2010) 185 Cal.App.4th 1462 (Samantha I) and Samantha C. v. State Dept. of Developmental Services (2012) 207 Cal.App.4th 71 (Samantha II) because, like in those cases, the writ court's decision "clarified the correct interpretation of a statute or regulation." These cases do not assist respondents.
In Samantha I, the appellant petitioned for writ of mandate challenging the decision of the Department of Developmental Services that she did not have a developmental disability and was therefore not entitled to services under a particular statutory scheme. The appellate court reversed the trial court's determination that the appellant did not have a developmental disability based on the overwhelming evidence indicating otherwise. (Samantha II, supra, 207 Cal.App.4th at pp. 74-75.) Upon remand, the appellant sought attorney fees under Code of Civil Procedure section 1021.5, and the trial court determined she was not entitled to them because she did not meet the requirement that the action conferred a significant benefit on the general public or a large class of persons. (Samantha II, at p. 79.) In Samantha II, the appellate court disagreed with the trial court. The appellate court explained that it was the defendant's misinterpretation of the statute and not merely a mistaken conclusion about the evidence offered on the appellant's behalf that led to the erroneous determination. (Ibid.) The appellate court further explained Samantha I resulted in a published decision which articulated the correct statutory explanation. (Samantha II, at p. 80.) The appellate court concluded "the erroneous statutory interpretation that had led to [the defendant's] denial of benefits to [the appellant] had also been applied to all other applicants who had sought benefits on similar grounds in the past, and that, but for [the appellant's] action and our ruling, [the defendant's] erroneous interpretation would have continued to be applied to those who would do so in the future." (Ibid.)
Samantha I and Samantha II are distinguishable. Unlike these cases, as we have stated, the writ proceeding did not result in published authority, or even to our knowledge, any agency or county policy changes. The Samantha II court was convinced others had been affected by the misinterpretation of the statute in question, but we do not have any evidence on which to base a conclusion that a situation like the present case had ever occurred before or is likely to occur again.
Because there is no factual basis for the trial court to have concluded the action conferred a significant benefit to the general public or a large class of people under Code of Civil Procedure section 1021.5, we conclude the writ court abused its discretion in awarding attorney fees to respondents. Because an award under section 1021.5 must meet all three requirements, our conclusion is dispositive, and we need not address the others.
DISPOSITION
The March 21, 2022 order awarding attorney fees is reversed. The November 30, 2021 judgment granting respondents' petition for writ of mandate is affirmed. The parties shall bear their own costs on appeal.
WE CONCUR: MEEHAN, Acting P. J. SNAUFFER, J.