Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Fresno County, No. 09CECG01251, Jeffrey Y. Hamilton, Judge.
Gregory D. Johnson III, in pro. per., for Plaintiff and Appellant.
Edmund G. Brown, Jr., Attorney General, Paul Reynaga and Melinda Vaughn, Deputy Attorneys General, for Defendant and Respondent.
OPINION
Kane, J.
Appellant Gregory D. Johnson III, while in custody as a patient at Coalinga State Hospital (CSH), filed an action in Fresno County Superior Court asserting that three policies used by CSH relating to patients’ deposit accounts or personal spending limits were invalid as a matter of law because they were not adopted as formal regulations in accordance with the procedural requirements of the Administrative Procedures Act (Gov. Code, § 11340 et seq.; APA). The trial court denied all relief and entered a defense judgment from which appellant now appeals. We conclude that appellant is correct regarding two of the challenged policies. Accordingly, we reverse the judgment in part.
Unless otherwise indicated, all subsequent statutory references are to the Government Code.
FACTS AND PROCEDURAL HISTORY
On April 7, 2009, appellant filed a petition for writ of mandate and complaint for declaratory relief (the petition) alleging that he is a patient/resident of the California Department of Mental Health (DMH) and is presently confined to CSH “pending trial to determine if he is a sexually violent predator.…” (Boldface omitted.) According to the petition, CSH followed certain internal policies with respect to patients such as appellant who are involuntarily confined there. The petition challenged the use by CSH of policies that were in reality regulations (1) limiting personal spending, and (2) assessing the cost of care of an individual involuntarily detained there, but which did not comply with the requirements for adopting regulations under the APA. The persons who allegedly failed in their official capacities to comply with the mandates of the APA, were respondents Stephen Mayberg (as Director of the DMH), Cynthia A. Radavski (as Deputy Director of the DMH) and Pam Ahlin (as Acting Executive Director of CSH).
The petition alleged that three particular policies administered by CSH were invalid for failure to comply with the APA-namely, Special Order No. 801.01, Administrative Directive No. 644 (AD No. 644) and the Cost of Care Memorandum. The three challenged policies are more fully described below.
Special Order No. 801.01
This special order was issued by the deputy director of DMH on August 8, 2008. It established a $300 per month personal spending limit for patients at state hospitals and provided an application procedure for patients who wished to exceed the $300 limit. The precise wording of Special Order No. 801.01 was as follows: “Monthly spending limits by individuals of their own personal funds for Personal and Incidental expenses shall be set at $300.00 per month. [¶] The Executive Director or designee at each state hospital may, on a case-by-case basis, grant permission to exceed this limit if the criteria used is consistent with treatment goals and the return of the individual to a less restrictive environment.” The special order further stated that its purpose was “[t]o establish a consistent, uniform individual spending limit, which is consistent with individual treatment goals” and that its issuance was according to the authority of section 11152.
Section 11152 provides, in relevant part, that “[s]o far as consistent with law[, ] the head of each department may adopt such rules and regulations as are necessary to govern the activities of the department.….”
AD No. 644
This CSH directive is essentially an operating manual for the “Trust Office” of CSH, setting forth policies, functions and procedures of that office, including procedures for administering the monthly spending limit and applications to exceed the spending limit. Although the document covers other areas of Trust Office operations, appellant apparently challenges only those provisions of AD No. 644 relating to the administration of the spending limit and applications to exceed the spending limit.
Cost of Care Memorandum
On March 4, 2009, CSH’s executive director issued an official memorandum providing that CSH is implementing the “Cost of Care” provisions set forth in Welfare and Institutions Code section 7281. The Cost of Care Memorandum advised that the Trust Office will review individual patient’s accounts to determine if such accounts are billable under the statutory provisions. The Cost of Care Memorandum informed patients that “Section 7281 states ‘Whenever the sum belonging to any one patient, deposited in the patients’ [sic] personal deposit fund, exceeds the sum of five hundred dollars ($500), the excess may be applied to the payment of the care, support, maintenance and medical attention of the patient.’” The memorandum further stated that the Trust Office will give notice to patients of any intended withdrawal of funds pursuant to the cost of care provisions, and that patients will be able to utilize established appeal procedures if there is a dispute regarding the amount of the intended withdrawal.
The Cost of Care Memorandum further noted that benefits from federal sources of income (e.g., veterans’ benefits) would not be assessed under the state-law cost of care provisions.
In summary, appellant’s petition alleged that the policies implemented by CSH in Special Order No. 801.01, AD No. 644 and the Cost of Care Memorandum constituted regulations under the APA, but were not adopted in accordance with the notice and procedural requirements of the APA for such regulations. Based on such allegations, appellant asserted causes of action for writ of mandate and declaratory relief, seeking a declaration by the trial court that CSH’s implementation of the above policies was in violation of the APA and requesting issuance of a writ directing respondents to, among other things, cease further use of the above policies until such time as respondents comply with the APA.
Respondents’ answer to the petition was filed on April 9, 2009. On July 6, 2009, appellant filed a notice of motion for a ruling on his petition for writ of mandate. Respondents filed an opposition to the petition, arguing that although the policies in question were not formally adopted as regulations under the APA, they came under recognized exceptions to the APA because they were merely reiterations of clear statutory provisions and/or internal management procedures of CSH. The trial court agreed with respondents’ position and issued an order denying the petition for writ of mandate. Judgment was thereafter entered in favor of respondents, and appellant timely filed a notice of appeal.
DISCUSSION
Appellant asserts on appeal, as he did in the trial court, that the above referenced policies are allegedly regulations and therefore the respondents’ failure to comply with the APA’s requirements for adopting regulations rendered the policies invalid and unenforceable until such time as respondents and the agencies they oversee comply with the APA. Respondents counter, as they did below, that the policies come within recognized exceptions to the APA’s requirements with respect to regulations. As these are issues of law under undisputed facts, we undertake an independent review. (Corrales v. Bradstreet (2007) 153 Cal.App.4th 33, 47-48.) Further, “[w]hether an agency action constitutes a regulation is a question of law that we review de novo.” (County of San Diego v. Bowen (2008) 166 Cal.App.4th 501, 517.) We begin our analysis with an overview of the APA.
I. APA’s Requirements for Agency Regulations
“The APA subjects proposed agency regulations to certain procedural requirements as a condition to their becoming effective.” (Morning Star Co. v. State Bd. of Equalization (2006) 38 Cal.4th 324, 332 (Morning Star).) Pursuant to the APA, “[n]o state agency shall issue, utilize, enforce, or attempt to enforce any guideline, criterion, bulletin, manual, instruction, order, standard of general application, or other rule, which is a regulation as defined in Section 11342.600, unless the guideline, criterion, bulletin, manual, instruction, order, standard of general application, or other rule has been adopted as a regulation and filed with the Secretary of State.…” (§ 11340.5, subd. (a).)
Under section 11000, subdivision (a), a “‘state agency’” is defined to include “every state office, officer, department, division, bureau, board, and commission, ” other than the California State University. It is not disputed that both DMH and CSH constitute state agencies under this definition.
If a rule constitutes a “regulation” within the meaning of the APA (other than an emergency regulation), it may not be adopted, amended, or repealed except in conformity with “basic minimum procedural requirements.” (§§ 11346, subd. (a), 11346.1; Morning Star, supra, 38 Cal.4th at p. 333.) Those minimum procedural requirements of the APA are “‘exacting.’” (Morning Star, supra, at p. 333.) “The requisite procedures under the APA include providing public notice of the proposed regulatory action; issuing a complete text of the proposed regulation with a statement of the reasons for it; granting interested parties an opportunity to comment on the proposed regulation; responding in writing to public comments; and forwarding a file of all materials on which the agency relied in the regulatory process to the Office of Administrative Law, which reviews the regulation for consistency with the law, clarity and necessity. [Citation.]” (County of San Diego v. Bowen, supra, 166 Cal.App.4th at p. 516.)
The APA defines “‘regulation’” very broadly. (Tidewater Marine Western, Inc. v. Bradshaw (1996) 14 Cal.4th 557, 571 (Tidewater).) As used in the APA, “‘[r]egulation’ means every rule, regulation, order, or standard of general application or the amendment, supplement, or revision of any rule, regulation, order, or standard adopted by any state agency to implement, interpret, or make specific the law enforced or administered by it, or to govern its procedure.” (§ 11342.600.) Whether an agency action constitutes a regulation is a question of law that we review de novo. (County of San Diego v. Bowen, supra, 166 Cal.App.4th at p. 517.)
“A regulation subject to the APA … has two principal identifying characteristics. [Citation.] First, the agency must intend its rule to apply generally, rather than in a specific case. The rule need not, however, apply universally; a rule applies generally so long as it declares how a certain class of cases will be decided. [Citation.] Second, the rule must ‘implement, interpret, or make specific the law enforced or administered by [the agency], or … govern [the agency’s] procedure.’ [Citation.]” (Tidewater, supra, 14 Cal.4th at p. 571.) If both indicia of a regulation exist and the APA’s requirements were not followed, the policy or procedure is invalid unless an exception to the APA’s requirements is applicable. (County of San Diego v. Bowen, supra, 166 Cal.App.4th at p. 520; Morning Star, supra, 38 Cal.4th at pp. 334, 340.)
Thus, “interpretations that arise in the course of case-specific adjudication are not regulations, though they may be persuasive as precedents in similar subsequent cases. [Citations.]” (Tidewater, supra, 14 Cal.4th at p. 571.) Similarly, when an agency provides advice letters to private parties, it is not a regulation; nor is it a regulation when an agency summarizes the agency’s prior decisions in specific cases and/or prior advice letters. (Ibid.)
A regulation that fails to comply with the APA’s procedural requirements is sometimes referred to as an “‘[u]nderground regulation.’” (Cal. Code Regs., tit. 1, § 250, subd. (a).)
The APA’s procedural requirements do not apply in certain situations set forth in the APA, including where an agency’s interpretation of a statute “embodies the only legally tenable interpretation of a provision of law.” (§ 11340.9, subd. (f).) This exception codifies the principle that if certain policies and procedures are “‘“essentially [] a reiteration of the extensive statutory scheme which the Legislature has established, ”’” then there is no duty to formally enact regulations to cover such reiterations. (Morning Star, supra, 38 Cal.4th at p. 336, quoting Engelmann v. State Bd. of Education (1991) 2 Cal.App.4th 47, 62, italics added.) “‘But to the extent any of the contents of the [statement of policy or procedure] depart from, or embellish upon, express statutory authorization and language, the [agency] will need to promulgate regulations.’ [Citation.]” (Morning Star, supra, 38 Cal.4th at p. 336.) Moreover, because “the APA establishes that ‘interpretations’ typically constitute regulations, … the exception for the lone ‘legally tenable’ reading of the law applies only in situations where the law ‘can reasonably be read only one way’ [citation], such that the agency’s actions or decisions in applying the law are essentially rote, ministerial, or otherwise patently compelled by, or repetitive of, the statute’s plain language.” (Id. at pp. 336-337.)
That is, for purposes of this exception, it is not enough that an agency’s construction of a statute is reasonable, consistent with the law or meritorious; it must also be the only legally tenable reading of the plain language of the law. (Morning Star, supra, 38 Cal.4th at pp. 336-337.)
Additionally, the APA’s procedural requirements do not apply if the policy “relates only to the internal management of the state agency.” (§ 11340.9, subd. (d).) However, this exception has been construed narrowly to matters relating to an agency’s internal affairs, and it has been found to be inapplicable if the procedure or policy is of a more general application and affects the rights of third parties. (Armistead v. State Personnel Bd. (1978) 22 Cal.3d 198, 203-204; United Systems of Arkansas, Inc. v. Stamison (1998) 63 Cal.App.4th 1001, 1010; Union of American Physicians & Dentists v. Kizer (1990) 223 Cal.App.3d 490, 498; Grier v. Kizer (1990) 219 Cal.App.3d 422, 435-438, disapproved on another point in Tidewater, supra, 14 Cal.4th at p. 577.)
We now apply these principles to the challenged policies.
II. Application
A. Special Order No. 801.01
We begin with a consideration of Special Order 801.01 issued by the deputy director of DMH. As noted above, Special Order 801.01 established a presumptive personal spending limit of $300 per month for patients at state hospitals and provided an application procedure for patients who wished to exceed the $300 limit, which would be determined on a case-by-case basis. The criteria to be used to determine if the limit may be exceeded must be “consistent with treatment goals and the return of the individual to a less restrictive environment.” The special order also explicitly stated that its purpose was “[t]o establish a consistent, uniform individual spending limit, which is consistent with individual treatment goals.”
We conclude this is a regulation for purposes of the APA because it clearly meets both prongs of the test set forth in Tidewater, supra, 14 Cal.4th at page 571. First, it is a rule of general application to patients in state hospitals and even expresses that it is an effort to create a uniform standard concerning spending limits. Second, it is an attempt to interpret or make specific an existing law. Respondents concede that Special Order No. 801.01 is an interpretation or implementation of an existing administrative regulation (i.e., Cal. Code Regs., tit. 22, § 71507), which recognizes that a patient has a right “to keep and be allowed to spend a reasonable sum of his own money for canteen expenses and small purchases.” (Id., subd. (a)(1).) The same administrative regulation provides that the responsible physician, or his or her designee, may for good cause deny a patient that right. (Id., subd. (b).) Special Order No. 801.01 does not merely reiterate the existing law, but makes it more specific and embellishes upon it. Among other things, it adopts a specific monetary amount (i.e., $300 per month) as what constitutes a reasonable spending limit for patients, and then it presents guidelines for the criteria to be used to decide whether or not to grant an exception. Since both prongs of the Tidewater test are satisfied, Special Order No. 801.01 plainly constitutes a regulation.
Respondents contend that Special Order No. 801.01 comes within an exception to the APA’s procedural requirements. That contention is without merit. As indicated above, it is not a mere reiteration or the only tenable interpretation of an existing law. Instead, it represents an effort by the agency to make the existing law more specific and to embellish upon it. Thus, the exception under section 11340.9, subdivision (f), is inapplicable. (See Morning Star, supra, 38 Cal.4th at p. 336.) Special Order No. 801.01 also does not come under the exception for matters that relate solely to the internal management of the agency (§ 11340.9, subd. (d)), because it is obviously a rule of general application that will affect numerous patients in state hospitals. (See Grier v. Kizer, supra, 219 Cal.App.3d at pp. 435-438, disapproved on another point in Tidewater, supra, 14 Cal.4th at p. 577.) Thus, both of these claimed exceptions to the procedural requirements of the APA are inapplicable.
Additionally, respondents argue that Special Order No. 801.01 does not require compliance with the APA because it is merely “‘an interpretation [that is] consistent with the language and intention of a law and existing regulations as a prelude to enforcement, ’” quoting Modesto City Schools v. Education Audits Appeal Panel (2004) 123 Cal.App.4th 1365, 1382 (Modesto City). Respondents’ argument is misplaced for two reasons. First, Modesto City involved an “audit guide” that served as a suggested resource only and left the auditor with case-by-case discretion to use other procedures in conducting any audit; therefore, it was not rule of general application. (Ibid.) That is not the situation here, since the special order is not merely a suggested guide but applies generally to patients in state hospitals. Second, the language excerpted from the Modesto City case is not an accurate statement of the law where, as here, the agency’s interpretation is one of general application, rather than a case-specific adjudication. The above quoted language in the Modesto City case was based on Aguilar v. Association for Retarded Citizens (1991) 234 Cal.App.3d 21, 27, a case that our Supreme Court identified as an example of a case-specific adjudication. (Tidewater, supra, 14 Cal.4th at p. 571.) Moreover, Tidewater disapproved two Court of Appeal decisions that had found an agency’s policy of general application need not comply with the APA if it was “merely an interpretation precedent to enforcement.” (Tidewater, supra, at pp. 573-574, disapproving Skyline Homes, Inc. v. Department of Industrial Relations (1985) 165 Cal.App.3d 239, 253 & Bono Enterprises, Inc. v. Bradshaw (1995) 32 Cal.App.4th 968, 978-979.) It seems to us that the position rejected in Tidewater is precisely what respondents are arguing here, and therefore that argument is without merit.
As explained in Morning Star, “absent an express exception, the APA applies to all generally applicable administrative interpretations of a statute.” (Morning Star, supra, 38 Cal.4th at p. 335.) Such agency interpretations “typically constitute regulations” and are not exempt from the procedural requirements of the APA unless the interpretation is the only one that is legally tenable, not merely an interpretation that is consistent with the law. (Morning Star, supra, at p. 336.)
Finally, respondents take the position that Special Order No. 801.01 is not a standard of general application and therefore not a regulation under the APA. The argument is that since a patient may apply for an exception to the $300 spending limit, in essence all cases will be resolved pursuant to a “case-by-case” adjudication. Thus, according to respondents, Special Order No. 801.01 is analogous to the suggested “audit guide” in Modesto City, supra, 123 Cal.App.4th at page 1382. We have already expressed our disagreement with the latter proposition in the discussion above. We also disagree with the characterization of Special Order No. 801.01 as leaving all decisions on personal spending limits to an individualized, case-by-case discretion. To the contrary, it is a rule of general application because it sets an across the board $300 spending limit that is applicable unless and until an application is made and approved to exceed that limit.
We conclude that Special Order No. 801.01 is a regulation for purposes of the APA and that no exception exists to the procedural requirements of the APA. Therefore, because it was not adopted pursuant to the procedural requirements of the APA, Special Order No. 801.01 is an invalid regulation. (§ 11340.5, subd. (a); Morning Star, supra, 38 Cal.4th at p. 340.)
Appellant’s opening brief attaches a letter from DMH’s office of human rights stating that Special Order No. 801.01 and the spending limit policy are “currently being reviewed and drafted as proposed regulations.”
B. AD No. 644
We next consider appellant’s challenge of AD No. 644. As noted previously, AD No. 644 is a policy directive of CSH that sets forth various functions, operations and procedures of the Trust Office at CSH, including procedures for administering a patient’s monthly spending limit and applications for exceptions to that limit. Appellant contends that AD No. 644 is a regulation and that CSH was required to, but did not, comply with the procedural requirements of the APA.
Respondents point out that appellant’s appeal referenced only certain pages of AD No. 644-primarily those pages relating to the monthly spending limit and applications for exceptions thereto-thus the appeal is apparently challenging only that portion of AD No. 644. Regarding that portion of AD No. 644, respondents contend it comes within the exceptions to the APA’s procedural requirements for policies that (1) relate solely to the internal management of the agency, and/or (2) merely reiterate existing law or adopt the only tenable construction thereof.
Preliminarily, we agree with respondents that appellant’s challenge to AD No. 644 must be limited to the portion of that policy document that expressly deals with a patient’s monthly spending limit and applications for exceptions thereto. The record on appeal included only selected pages of AD No. 644, and we believe such a partial record is adequate to allow us to address only the discrete portion of AD No. 644 that relates to the monthly spending limit and applications for exceptions thereto. We shall restrict our review accordingly.
We limit our review to those matters supported by an adequate record and decline to go beyond that point for reasons that are basic to the appellate process. (See Fladeboe v. American Izusu Motors Inc. (2007) 150 Cal.App.4th 42, 58 [appellant bears the burden of providing an adequate record affirmatively proving errors raised]; Null v. City of Los Angeles (1988) 206 Cal.App.3d 1528, 1532 [same]; Banning v. Newdow (2004) 119 Cal.App.4th 438, 453, fn. 6 [assertions outside record disregarded].)
There is a second preliminary matter that warrants brief mention before we proceed. The version of AD No. 644 that is before us refers to Special Order No. 801 (not 801.01) and states that the current monthly spending limit under Special Order No. 801 is $200 (not $300). The reason for this inconsistency is apparent from the record. Special Order No. 801.01, which has an effective date of August 8, 2008, unequivocally declares that it “Replaces [Special Order No.] 801.” (Italics added.) Thus, as far as DMH was concerned, the special order that was actually in effect regarding the monthly spending limit was Special Order No. 801.01, not 801. While the current version of AD No. 644 is outdated to the extent that it still refers to former Special Order No. 801, respondents acknowledge in their brief that CSH presently utilizes AD No. 644 to implement the $300 spending limit adopted by Special Order No. 801.01. Accordingly, for purposes of this appeal, we shall treat AD No. 644 as though it has been updated to refer to Special Order No. 801.01.
What, then, does AD No. 644 say about how the Trust Office shall administer the monthly spending limit? At page 2 of AD No. 644, under the heading “C. Financial Guidance, ” a statement is made that the Trust Office will “[m]onitor [i]ndividual’s … monthly spending limit” per the applicable special order. At page 5 of AD No. 644, under the heading “F. Monthly Spending Limit, ” the document contains 11 numbered paragraphs describing Trust Office functions regarding the monthly spending limit. These 11 numbered paragraphs give basic instructions to Trust Office personnel, informing them of the amount of the monthly spending limit and how to process applications for exceptions. For example, the amount of the “current” spending limit is stated; the fact that the executive director may approve an individual to exceed that amount is stated; the Trust Office is instructed to use a written form for requests to exceed the monthly limit; the request to exceed the monthly limit must include an explanation of the basis for the request; such requests are to be forwarded to the executive director to obtain approval to exceed the spending limit; and additional supporting documentation may be requested, etc.
It is clear from the foregoing description that AD No. 644 provides procedural and administrative measures to implement the monthly spending limit with respect to patients at CSH. Thus, the monthly spending limit policy set forth in Special Order No. 801.01 and the above referenced provisions of AD No. 644 are interconnected and the two must stand or fall together in this case. Just as we have held that Special Order No. 801.01 constitutes a “regulation” under the APA because it is (1) general in its application and (2) interprets or makes more specific the existing administrative law (i.e., Cal. Code Regs., tit. 22, § 71507, subd. (a)(1) [that patients have a right to have a reasonable sum of their own money to spend for canteen expenses and small purchases]), we believe the same conclusion follows regarding the above referenced provisions of AD No. 644. That is, the spending limit policy implemented in AD No. 644 also constitutes a regulation under the APA. (Tidewater, supra, 14 Cal.4th at p. 571.)
Although a smaller number of patients would be affected by AD No. 644, since it applies only to CSH patients, it still would affect all patients at CSH. Respondents do not argue that AD No. 644 is not a regulation simply because it applies only at that state hospital.
We reject respondents’ contention that the subject provisions of AD No. 644 come within either of the claimed exceptions to the APA. Even if some of the provisions could be classified as matters related solely to internal management of CSH, the greater part would still include substantial provisions for enforcing a monthly spending limit in a particular monetary amount and administering applications to exceed that amount. Such provisions clearly affect third parties’ rights and do not relate solely to the internal affairs of CSH. Regarding the assertion that the policy comes within the exception to the APA as a mere reiteration or restatement of existing law (or the adoption of the only tenable construction thereof), we reject respondents’ contention for the same reasons as explained in our consideration of Special Order No. 801.01. We conclude that the subject provisions of AD No. 644 are an invalid regulation due to CSH’s failure to comply with the APA’s procedural requirements for adopting regulations.
Additionally, we note it cannot be viewed as a reiteration or restatement of Special Order No. 801.01, since that special order is not a valid regulation.
C. Cost of Care Memorandum
Finally, appellant contends that the Cost of Care Memorandum constituted a regulation that was subject to the procedural requirements of the APA. Respondents respond that the Cost of Care Memorandum was merely a restatement of existing law and an expression of details of internal management, and therefore the memorandum came within recognized exceptions to the APA requirements. Respondents are correct.
To review, the Cost of Care Memorandum was issued by CSH’s executive director and provided notice that CSH would be implementing the “Cost of Care” provisions that are set forth in Welfare and Institutions Code section 7281. The memorandum advised that the Trust Office would review individual patient’s accounts to determine if such accounts were billable under the statutory provisions of Welfare and Institutions Code section 7281, and it specifically informed patients that “Section 7281 states ‘Whenever the sum belonging to any one patient, deposited in the patients’ [sic] personal deposit fund, exceeds the sum of five hundred dollars ($500), the excess may be applied to the payment of the care, support, maintenance and medical attention of the patient.’” The memorandum further stated that the Trust Office would give notice to patients of any intended withdrawal of funds pursuant to the cost of care provisions, and that patients would be able to utilize established appeal procedures if there was a dispute regarding the amount of the intended withdrawal.
We agree with respondents that the Cost of Care Memorandum was a reiteration of the plain terms of existing law as set forth in Welfare and Institutions Code section 7281. The memorandum explicitly provided that the “Cost of Care” provisions in section 7281-namely that “[w]henever the sum belonging to any one patient, deposited in the patients’ [sic] personal deposit fund, exceeds the sum of five hundred dollars ($500), the excess may be applied to the payment of the care, support, maintenance and medical attention of the patient”-will be carried out by CSH. The substance of the Cost of Care Memorandum restated an unambiguous law in an “essentially rote, ministerial” manner; therefore, it was exempt from the APA’s procedural requirements. (Morning Star, supra, 38 Cal.4th at p. 337.) Moreover, the additional details that are spelled out in the memorandum concerning the manner of accomplishing the “Cost of Care” statutory objective, such as the fact that personal deposit funds will be reviewed or that notice will be given of any sums proposed to be used for cost of care, etc., are likewise ministerial in nature or necessary details of internal management. We conclude that the trial court was correct that the Cost of Care Memorandum was not subject to the procedural requirements of the APA.
Our opinion is not changed by the fact that the Cost of Care Memorandum further states that benefits under federal laws (e.g., veterans’ benefits) would not be assessed under the state-law cost of care provisions. The cost of care program is obviously a matter of state law only.
I. Attorney Fees
We see no merit in appellant’s request for an award of attorney fees under Code of Civil Procedure section 1021.5. First, aside from a cursory “prayer” for attorney fees, appellant’s opening brief did not support the claim for attorney fees with any legal argument. Accordingly, the argument is waived or forfeited. (People v. Stanley (1995) 10 Cal.4th 764, 793; Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6; Campos v. Anderson (1997) 57 Cal.App.4th 784, 794, fn. 3 [argument raised for first time in reply brief will not be considered].) Second, because appellant is unrepresented, he is not entitled to recover attorney fees under section 1021.5. (Atherton v. Board of Supervisors (1986) 176 Cal.App.3d 433, 437 [nonattorney litigant who represented himself was not entitled to fees under section 1021.5]; In re Dormio (1981) 127 Cal.App.3d 788, 792-794.)
DISPOSITION
The judgment is (1) affirmed as to the denial of relief concerning the Cost of Care Memorandum and (2) reversed as to the denial of relief concerning Special Order No. 801.01 and AD No. 644. The trial court shall enter a new judgment granting appellant’s request for a writ of mandate and declaratory relief concerning Special Order No. 801.01 and the portion of AD No. 644 addressing personal spending limits and applications for exceptions thereto. Costs on appeal are awarded to appellant.
WE CONCUR: Wiseman, Acting P.J., Gomes, J.