Result Was A Reversal And Grant Of $7,500 In Maximum Allowable Fees Under § 1028.5.
CCP § 1028.5 is one of those special California fee-shifting statutes, which in this instance provides that a small business or licensee prevailing in an action against a statute regulatory agency can recover a maximum attorney’s fees award of $7,500. This statutory provision was at issue in Al-Shaikh v. State Dept. of Health Care Services, Case No. A147939 (1st Dist., Div. 1 Mar. 27, 2018) (published).
What happened in this case was that plaintiff doctor challenged DHCS’ denial of an application for his Fremont office to be accepted as a Medi-Cal “established place of business.” After losing through the administrative appeal process, doctor filed a writ petition before the superior court and cited to what he believed was a dispositive Office of Inspector General (OIG) publication on the merits of his application request. While the matter was under submission by the lower court, DHCS shifted course and granted the application with respect to doctor’s Fremont office. The trial judge dismissed the petition as moot, without prejudice to doctor seeking statutory fees and costs.
Doctor did just that under CCP § 1028.5, but the trial judge denied the fees request.
Doctor did well to appeal. The 1/1 DCA decided that DHCS did act without substantial justification because the issue was not unsettled based on the OIG publication. It reversed the fee denial and directed the trial judge to award doctor the $7,500 maximum in fees.