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Filed 7/31/20

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

CALIFORNIA DISABILITY SERVICES 

ASSOCIATION et al.,

Plaintiffs and Appellants,

v.

NANCY BARGMANN, as Director, etc. et al.,

Defendants and Respondents.

C088493

(Super. Ct. No. 

34201780002571CUSMGDS)

APPEAL from a judgment of the Superior Court of Sacramento County, Richard 

K. Sueyoshi, Judge. Affirmed.

Forrest & Becker Law Group and Emma L. Forrest for Plaintiffs and Appellants.

Xavier Becerra, Attorney General, Cheryl L. Feiner, Senior Assistant Attorney 

General, Ismael A. Castro, Christine M. Murphy, and Hadara R. Stanton, Deputy 

Attorneys General, for Defendants and Respondents.

Petitioners California Disability Services Association; Horrigan Cole Enterprises, 

Inc., doing business as Cole Vocational Services; Unlimited Quest, Inc.; Loyd’s Liberty 
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Homes, Inc.; and First Step Independent Living Program, Inc. (collectively petitioners) 

filed a petition for writ of mandamus and damages and a complaint for declaratory relief 

against the California Department of Developmental Services (Department) and its 

director, Nancy Bargmann (collectively respondents). Petitioners challenged the 

Department’s denial of their requests for a rate adjustment due to the increase of the 

minimum wage, which, in turn, impacted the salaries of their exempt program directors, 

who must be paid twice the minimum wage. The trial court upheld the Department’s 

denial. We affirm. 

BACKGROUND

The Welfare and Institutions Code requires the Department to contract with 

regional centers to provide services to individuals with developmental disabilities. (Welf. 

& Inst. Code, §§ 4500 et seq., 4620, subd. (a).) The regional centers contract for needed 

services, such as community-based day programs for individuals with developmental 

disabilities, through approved service providers. (Id., § 4691, subd. (a).) Petitioners, 

except for California Disability Services Association, are approved service providers of 

community-based day programs.1 California Disability Services Association is their 

trade association. 

Providers are subject to various licensing requirements (Welf. & Inst. Code,

§ 4851), which obligate providers to submit to the regional center information about the 

community-based day program’s design, job descriptions, staff qualifications, and 

staffing plan (Cal. Code Regs.,2tit. 17, § 50608). Collectively, providers employ 24 

program directors who are required to “carry out the administrative responsibilities for 

 

1 We will refer to petitioner service providers as providers. 

2 Undesignated sections refer to title 17 of the California Code of Regulations.
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the [community-based day] program,” and have primary responsibility for multiple 

functions pertaining to staffing and project planning. (§ 56724.) 

The Department initially sets a provider’s “permanent payment rate” based on 

information submitted by the provider, including information regarding “allowable costs” 

such as salary, wages, and benefits. (§§ 57434, 57500.) Once a provider’s permanent 

payment rate has been set, adjustments to the rate are constrained until a new rate-setting 

procedure is completed by the Department. (Welf. & Inst. Code, § 4691, subd. (b)(3).) 

Rate adjustments shall be made, however, for unanticipated program changes. 

“Unanticipated program changes shall be limited to the following: [¶] (1) Mandated 

service adjustments due to changes in, or additions to, existing statutes, laws, regulations 

or court decisions; and/or [¶] (2) Emergency relocations as required to protect the health 

and safety of the consumers.” (§ 57920, subd. (c).)

Providers requested rate adjustments from the Department for an unanticipated 

program change on grounds the increase of the minimum wage resulted in an increase to

the salaries of their program directors. (See Lab. Code, § 1182.11.) This was because a

program director’s job description meets the requirements of the Labor Code and 

applicable wage order allowing providers to classify program directors as exempt 

employees, but requiring their salary be at least twice the minimum wage. (See Lab. 

Code, § 515, subd. (a); see also Cal. Code Regs., tit. 8, § 11040.) 

The Department denied providers’ requested rate adjustment and subsequent 

appeal. Petitioners petitioned for writ of mandamus and damages and filed a complaint

for declaratory relief. On reply, petitioners requested the trial court take judicial notice of 

several exhibits, one of which included 1,715 pages of Department documents showing it 

denied every “request for unanticipated program changes due to Program Director salary 
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increases necessitated by minimum wage laws . . . on precisely the same grounds 

[providers’] claims were rejected.” Petitioners also sought judicial notice of a letter from 

the assistant director of the Department’s Community Services Division concerning the 

minimum wage increase and ability of providers to seek rate adjustments. Finally, 

petitioners sought judicial notice of the Department’s “Manual of Policies and 

Procedures” for “Adult Day Programs.” 

The trial court denied petitioners’ request for judicial notice of these documents 

finding the request untimely because it was made on reply. The court further denied the 

petition and complaint for declaratory relief finding providers’ classification of the 

program directors as exempt employees was not mandated by law, thus “there is no 

ministerial duty imposed on the Department to grant a wage increase request in order to 

accommodate continued entitlement to the exemption.” 

Petitioners appeal. 

DISCUSSION

Petitioners contend the trial court erred by denying the petition because it

misconstrued the relevant statutes and regulations and because it failed to consider 

several documents they requested be judicially noticed when making its decision. We 

disagree. 

“Rules governing the interpretation of statutes also apply to interpretation of 

regulations.” (Diablo Valley College Faculty Senate v. Contra Costa Community College

District (2007) 148 Cal.App.4th 1023, 1037.) “ ‘ “In construing any statute, we first look 

to its language. [Citation.] ‘Words used in a statute . . . should be given the meaning 

they bear in ordinary use. [Citations.] If the language is clear and unambiguous there is 

no need for construction, nor is it necessary to resort to indicia of the intent of the 
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Legislature . . . .’ [Citation.] ‘If the language permits more than one reasonable 

interpretation, however, the court looks “to a variety of extrinsic aids, including the 

ostensible objects to be achieved, the evils to be remedied, the legislative history, public 

policy, contemporaneous administrative construction, and the statutory scheme of which 

the statute is a part.” [Citation.]’ [Citation.]” [Citation.] Also, a statute “ ‘must be given 

a reasonable and common sense interpretation consistent with the apparent purpose and 

intention of the lawmakers, practical rather than technical in nature, which upon 

application will result in wise policy rather than mischief or absurdity.’ ” [Citations.] A 

court may not, “under the guise of construction, rewrite the law or give the words an 

effect different from the plain and direct import of the terms used.” ’ ” (Lincoln Unified 

School District v. Superior Court (2020) 45 Cal.App.5th 1079, 1090.) 

“[T]he issue of statutory construction is a question of law on which a court 

exercises independent judgment.” (Western States Petroleum Assn. v. Board of 

Equalization (2013) 57 Cal.4th 401, 415.)

As discussed, while providers cannot receive an adjustment to their permanent rate 

until the Department has set a new rate-setting procedure, rate adjustments are required

for unanticipated program changes, which, as relevant here, include “[m]andated service 

adjustments due to changes in, or additions to, existing statutes, laws, regulations or court 

decisions.” (§ 57920, subd. (c)(1).)

Petitioners contend the minimum wage increase and effect on the program 

directors’ salaries constituted a mandated service adjustment. Petitioners reason that 

when calculating their permanent rate, both providers and the Department considered the 

salaries of providers’ employees, including program directors who possess legally

defined attributes that also entitle providers to classify them as exempt employees who 
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must make at least twice the minimum wage. Thus, petitioners maintain, the “program”

as established by the permanent rate and licensing disclosures was changed when the law 

required an increase to the minimum wage resulting in an increase to the salary of 

program directors.

The problem with petitioners’ argument is that a change to the program, as 

established by the permanent rate and licensing procedures, does not fall within the 

definition of an “[u]nanticipated program change.” The regulation clearly defines the 

term as “[m]andated service adjustments due to changes in, or additions to” enumerated 

legal authorities. The regulation’s focus is on new legal authority and whether it

mandates a service adjustment.3 Thus, a particular program’s allowable costs are 

irrelevant and our focus must be on “changes in, or additions to, existing statutes, laws, 

regulations or court decisions.” (§ 57920, subd. (c)(1).)

The statute requiring an increase of the minimum wage does not mandate any 

change to program directors’ salaries -- by the statute’s plain reading it applies only to 

minimum wage workers, which a program director is not. (See Lab. Code, § 1182.12.)

Thus, the law increasing the minimum wage cannot be the basis for an unanticipated 

program change. 

Petitioners point to the legally required attributes of program directors (see 

§ 56724) and reason that, because those attributes also entitle providers under the 

applicable wage order (see Cal. Code Regs., tit. 8, § 11040) to classify them as exempt 

employees under Labor Code section 515, the increase to the minimum wage resulted in 

 

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In addition to arguing the increase of the minimum wage did not have a mandatory 

effect on program directors’ salaries, respondents argue the increase also did not result in 

a service change. Because we conclude the increase did not have a mandatory 

implication on program directors’ salaries, we need not determine whether the salary 

increase constituted a “service change.” (§ 57920, subd. (c)(1).) Nor do we venture to 

interpret the meaning or significance of that term. 
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a mandatory adjustment. Not so. As the trial court noted, these authorities do not

require providers to classify program directors as exempt employees. (See Lab. Code, 

§ 515, subd. (a) [“The Industrial Welfare Commission may establish exemptions . . . .”]; 

see also Cal. Code Regs., tit. 8, § 11040 [wage order specifying duty requirements that 

qualify an employee for exempt status].) Indeed, it was providers who elected this option 

to avoid paying overtime wages. (See Lab. Code, §§ 510, subd. (a)(1), 515.) 

The only provisions of legal significance identified by petitioners requiring the 

program directors’ salaries be at least twice the minimum wage are the employment 

contracts between the providers and the program directors. Thus, the adjustment was not 

mandated by “statutes, laws, regulations or court decisions.” (See § 57920, subd. (c)(1).) 

Accordingly, petitioners have not shown an unanticipated program change, entitling 

providers to a rate adjustment. 

Given this plain interpretation of the pertinent statutes and regulations, we do not 

see how the Department’s rejection of similar claims, a Department letter about rate 

adjustments regarding the increase of the minimum wage, and a service manual are

relevant to the ultimate question of whether a legal mandate required providers to make 

service adjustments. Thus, petitioners cannot show they were prejudiced by the court’s 

denial of their judicial notice requests. (See Cal. Const., art. VI, § 13 [“[n]o judgment 

shall be set aside, or a new trial granted, in any cause . . . unless, after an examination of 

the entire cause, including the evidence, the court shall be of the opinion that the error 

complained of has resulted in a miscarriage of justice”].)4 

 

4 We also decline to consider the issue of the California Disability Services 

Association’s standing. It requests us to do so, so that its other members may efficiently 

receive a rate adjustment on similar grounds discussed in this appeal. Given our 

conclusion providers are not entitled to a rate adjustment, the California Disability 

Services Association’s concern is unwarranted. 
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DISPOSITION

The judgment is affirmed. The parties shall bear their own costs. (Cal. Rules of 

Court, rule 8.278(a)(5).)

/s/ 

Robie, J.

We concur:

/s/ 

Raye, P. J.

/s/ 

Butz, J.

*

 

*

 Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by 

the Chief Justice pursuant to article VI, section 6 of the California Constitution.