Filed 4/28/16 In re John C. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

In re JOHN C., a Developmentally 

Disabled Person.

HARBOR DEVELOPMENTAL 

DISABILITIES FOUNDATION, etc.,

 Petitioner and Respondent,

v.

RAYMOND C. et al., 

 Objectors and Appellants.

 G051189

 (Super. Ct. No. A169785)

 O P I N I O N

Appeal from an order of the Superior Court of Orange County, Gerald G. 

Johnston, Judge. Affirmed.

Locke Lord, Jon L. Rewinski and Matthew B. Nazareth for Objectors and 

Appellants.

Enright & Ocheltree, Judith A. Enright, Julie A. Ocheltree and Noelle V. 

Bensussen for Petitioner and Respondent.
2

Suzanne Davidson, under appointment by Court of Appeal, for John C.

* * *

John C.1is a 60-year-old, developmentally disabled person who has resided 

at Fairview Developmental Center (Fairview) for 50 years. Since the early 1990’s, the 

trial court has authorized John’s Fairview residence based on a series of placements 

under the Lanterman Developmental Disabilities Services Act (Lanterman Act; Welf. & 

Inst. Code, § 4500 et seq.).2 The Harbor Regional Center initiated each of these 

placements by petitioning for court approval, and John’s coconservators, Raymond C., 

Carol C., and Andrea C. (collectively, Appellants), supported the ongoing placement. 

This appeal is the second time we have been called upon to determine whether the trial 

court periodically must review whether to continue John’s ongoing placement at 

Fairview.

In our previous opinion, we concluded John had a due process right to 

periodic judicial review of his Fairview placement because confinement in a state 

developmental center, which is the most restrictive environment available under the 

Lanterman Act, constitutes a significant restraint on his personal liberty. We also 

concluded John’s equal protection rights required periodic judicial review because other 

adults placed in similar protective custody under other statutory schemes have the right to 

periodic judicial review of their confinement. We therefore issued a writ of mandate 

directing the trial court to conduct a hearing on the Harbor Regional Center’s most recent 

petition seeking court approval of John’s ongoing Fairview placement. 

 

1

For privacy reasons, we abbreviate the last name of John and his family 

members, and will use only their first names. (See Welf. & Inst. Code, § 4502, subd. (b); 

Conservatorship of Susan T. (1994) 8 Cal.4th 1005, 1008, fn. 1.) No disrespect in 

intended.

2 All further statutory references are to the Welfare and Institutions Code 

unless otherwise stated.
3

On remand, however, the Harbor Regional Center requested to dismiss its 

petition before the trial court conducted a hearing. The Harbor Regional Center 

explained since it originally filed the petition over three years earlier it had determined a 

less restrictive placement could meet John’s needs. Appellants opposed the dismissal 

because they believed Fairview remained the least restrictive facility capable caring for 

John, and the Harbor Regional Center had not identified another specific facility capable 

of doing so. Finding John’s Fairview placement could not be maintained without the 

Harbor Regional Center’s approval, the trial court granted the dismissal request and 

Appellants appealed.

We affirm. Our previous opinion required judicial review for the limited 

purpose of determining whether John’s disabilities continued to justify the restraint on his

personal liberty inherent in his ongoing developmental center placement. As a 

constitutional safeguard, we required an independent judicial review to ensure the 

statutory scheme authorizing the ongoing placement did not allow the Harbor Regional 

Center and Appellants to indefinitely confine John in Fairview. 

After the Harbor Regional Center withdrew its support for John’s ongoing 

placement at Fairview, however, judicial review no longer was necessary because the 

Lanterman Act does not permit John to remain at Fairview without the Harbor Regional 

Center’s approval. The Harbor Regional Center’s decision to withdraw its placement 

petition transformed this matter from an independent review of the ongoing placement’s 

constitutionality into a dispute between Appellants and the Harbor Regional Center over 

the least restrictive placement capable of meeting John’s needs. 

It is well established the Lanterman Act’s administrative fair hearing 

process provides the exclusive forum for resolving a dispute over whether a 

developmentally disabled person should remain in a development center or transition into 

a less restrictive community-based facility. Judicial review may be sought only after the 

parties have exhausted their administrative remedies. Our earlier decision did nothing to 
4

change this basic rule. The nature and purpose of the periodic judicial review we 

required to ensure the constitutionality of John’s placement differs greatly from the 

dispute resolution hearing under the fair hearing process.

Appellants therefore must invoke the fair hearing process to challenge the

Harbor Regional Center’s decision to transfer John to a specific community-based 

facility, and they may obtain judicial review only after that process has run its course. To 

minimize the impact on John, he may not be transferred until the issues concerning his

placement are resolved and all services and supports he requires are in place at the new 

facility. 

I

FACTS AND PROCEDURAL HISTORY

John is a 60-year-old, developmentally disabled adult with an estimated IQ 

of 14. He suffers a wide variety of medical conditions that require around-the-clock care, 

including generalized nonintractable epilepsy, lipoma, osteopenia, hypothyroidism, 

hypertension, and coronary arteriosclerosis. John cannot communicate verbally, nor can 

he tell others when he is experiencing pain or needs medical attention. He is fully 

ambulatory, but he cannot self-administer the many daily medications he requires, nor 

can he provide for his basic personal needs such as food, shelter, and clothing. For his 

own safety, John requires close supervision because he cannot appreciate basic safety 

hazards. 

Based on John’s developmental disabilities, his parents, Raymond and 

Carol, admitted him to Fairview at the age of 10. In 1996, the trial court appointed 

Raymond, Carol, and John’s sister, Andrea, as limited coconservators for John under the 

Probate Code. The court granted Appellants the power “[t]o fix the residence or specific 

dwelling of [John] to include request for placement at a State Developmental Center,” 

give or withhold medical consent, and contract on John’s behalf. The court has 
5

investigated and reviewed this limited conservatorship every two years, but has not found 

any grounds to modify or terminate it. 

Since 1993 the trial court has annually reviewed the suitability of John’s 

Fairview placement under In re Hop (1981) 29 Cal.3d 82 (Hop) and section 4825. The 

Harbor Regional Center initiated each of these annual “Hop reviews” by requesting court 

approval for John to remain at Fairview. Each time the court conducted a Hop review, it 

appointed the Orange County Public Defender (Public Defender) to serve as John’s

attorney and ultimately approved John’s continued placement at Fairview subject to 

“further judicial review within one (1) year.” 

The Harbor Regional Center filed its most recent “Hop petition” in 

September 2010, explaining “there is no known suitable, legally available placement [for 

John] that is less restrictive than the proposed state developmental center placement.” In 

December 2011, while that petition remained pending, the Public Defender filed a habeas 

corpus petition on John’s behalf, alleging John’s ongoing Fairview placement unlawfully 

restrained his personal liberty because it was not the least restrictive placement capable of 

meeting his needs. 

In response, Appellants filed a petition for writ of mandate or prohibition to 

prevent the trial court from deciding the habeas corpus petition. Appellants urged us to 

dismiss the habeas corpus petition because the Public Defender lacked authority to file it 

on John’s behalf. In their appellate briefs, Appellants also argued the trial court lacked 

jurisdiction under Hop to review John’s ongoing Fairview placement because the 

placement should be determined through the Lanterman Act’s administrative fair hearing 

process. Appellants, however, did not seek any relief regarding the pending Hop petition. 

In an unpublished opinion, we granted Appellants’ writ petition and “direct[ed] the trial 

court to (1) enter an order dismissing the habeas corpus petition, and (2) conduct a 

hearing on the Hop petition.” 
6

On remand, the trial court dismissed the Public Defender’s habeas corpus 

petition and scheduled the Harbor Regional Center’s Hop petition for trial. Appellants 

then filed a “Notice of Joinder of Hop Petition” stating they “join[ed] in the currently 

pending Petition for Renewal of State Developmental Center Placement (In re Hop/W&I 

§4825) filed by Harbor Regional Center.” Later that same day, the Harbor Regional 

Center filed a “Motion for Withdrawal of Hop Petition,” seeking an order allowing it to 

withdraw the pending Hop petition and vacating the trial date on the petition. The motion 

explained, “the petition was filed [four years earlier] and the relief requested in the 

petition is no longer appropriate and [the Harbor Regional Center] is no longer seeking 

placement in a state developmental center.” The Harbor Regional Center argued it had 

the right to dismiss the action under Code of Civil Procedure section 581 because it was 

the party who initiated the proceedings, it was the only one with authority to keep John at 

Fairview, and the hearing on the petition had not yet commenced. In seeking to dismiss 

the Hop petition, the Harbor Regional Center did not identify a specific facility to which 

it intended to transfer John nor did it seek an order changing John’s placement.

Appellants opposed the Harbor Regional Center’s motion, arguing the trial 

court had jurisdiction to review John’s ongoing Fairview placement despite the Harbor 

Regional Center’s motion to withdraw its Hop petition because Appellants, as John’s 

coconservators with the authority to fix his residence, believed Fairview was the least 

restrictive placement that met John’s needs. Appellants also argued their joinder in the 

Hop petition prevented the Harbor Regional Center from dismissing the petition. 

The trial court granted the Harbor Regional Center’s motion and dismissed 

the Hop petition, explaining, “In the absence of any authority indicating Code of Civil 

Procedure section 581(b) does not apply to Hop petitions, the Court finds this section 

applicable. Joinder filed by Opposing party does not confer to that person authority 

which is statutorily reserved for the regional center regarding placement. Opposing party 

retains the ability for meaningful participation in any placement decision proposed by 
7

Harbor Regional Center through the administrative fair hearing process.” The court also 

emphasized that the question of which placement was most appropriate for John was not 

ripe for judicial review because no final determination had been made and the 

administrative process had not been exhausted. 

Appellants appealed from the order dismissing the Hop petition and related 

proceedings.3 

II

DISCUSSION

A. The Lanterman Act and State Developmental Center Placements

The Lanterman Act “‘grants persons with developmental disabilities the 

right to receive treatment and services to meet their needs, regardless of age or degree of 

handicap, at each stage of life.’” (In re Michael K. (2010) 185 Cal.App.4th 1112, 1117

(Michael K.).) “The Legislature enacted the Lanterman Act to ‘establish certain rights of 

the so-called developmentally disabled persons, primarily their entitlement to the 

maximum degree of personal liberty and autonomy consonant with their handicap.’” 

(Ibid.) “These [rights] include the ‘right to treatment and habilitation services and 

 

3 Although an order dismissing an action or special proceeding under Code 

of Civil Procedure section 581, subdivision (b)(1), generally is not appealable, none of 

the parties question whether we properly may hear Appellants’ appeal. We nonetheless 

conclude it is appropriate to address the issues presented by the trial court’s order because 

Appellants’ appeal presents questions of law we review de novo and the nature of the 

proceedings relating to judicial review of a developmentally disabled person’s ongoing 

placement at a state developmental center render the issues capable of recurring, yet 

evading review. (See Conservatorship of Martha P. (2004) 117 Cal.App.4th 857, 865, 

fn. 5.) Indeed, the ability of these issues to recur and evade review is demonstrated by 

the existence of two additional appeals currently pending before this court that challenge 

a trial court order dismissing a Hop petition under Code of Civil Procedure section 581, 

subdivision (b)(1). (See In re Donna P. (April 28, 2016, G050750) [nonpub. opn.]; In re 

Michelle K. (April 28, 2016, G051177 [nonpub. opn.].)
8

supports in the least restrictive environment’ and the ‘right to dignity, privacy, and 

humane care,’ with treatment, services and supports provided in natural community 

settings to the maximum extent possible.” (Capitol People First v. State Dept. of 

Developmental Services (2007) 155 Cal.App.4th 676, 682 (Capitol People).)

“A ‘“[d]evelopmental disability”’ is ‘a disability that originates before an 

individual attains age 18 years, continues, or can be expected to continue, indefinitely, 

and constitutes a substantial disability for that individual.’ (§ 4512, subd. (a).) The term 

includes ‘mental retardation, cerebral palsy, epilepsy, and autism,’ but does not include 

‘other handicapping conditions that are solely physical in nature.’ (Ibid.)” (Michelle K.

v. Superior Court (2013) 221 Cal.App.4th 409, 422 (Michelle K.).)

“The state contracts with private nonprofit corporations to establish and 

operate a network of 21 regional centers [including the Harbor Regional Center] that are 

responsible for determining eligibility, assessing needs, and coordinating and delivering 

direct services to developmentally disabled persons and their families. [Citation.] The 

regional centers’ purpose is to ‘assist persons with developmental disabilities and their 

families in securing those services and supports which maximize opportunities and 

choices for living, working, learning, and recreating in the community.’ [Citation.] The 

state ‘allocates funds to the centers for operations and the purchasing of services, 

including funding to purchase community-based services and supports.’” (Michelle K., 

supra, 221 Cal.App.4th at p. 422.)

“‘The specific rights of persons with developmental disabilities and the 

corresponding obligations of the state are determined through an individual program plan 

(IPP) procedure that meets common statutory requirements. (§§ 4646-4648.) The IPP is 

developed by a planning team that includes the [developmentally disabled person], his or 

her legally authorized representative, and one or more regional center representatives.

(§ 4512, subd. (j).) The goals and objectives developed through the IPP process should 

maximize opportunities for the individual to be part of community life; enjoy increased 
9

control over his or her life; acquire positive roles in community life; and develop the 

skills to accomplish the same. (§ 4646.5, subd. (a)(2).)’” (Michelle K., supra, 

221 Cal.App.4th at p. 422.) The developmentally disabled person and his or her 

conservator or representative are statutorily guaranteed “the opportunity to actively 

participate in the development of the [IPP].” (§ 4646, subd. (b).)

“Before July 1, 2012, a nondangerous, developmentally disabled person 

could be admitted to a state developmental center in two ways. First, the person could 

submit a written admission application if he or she ‘is in such condition of mind as to 

render him competent to make [the application].’ (§ 6000, subd. (a)(1).) Second, 

section 4825 authorized admission ‘upon the application of the person’s parent or 

conservator in accordance with the provisions of Sections 4653 and 4803.’ (See 

§ 6000.5.) Section 4653 states ‘no developmentally disabled person shall be admitted to 

a state hospital except upon the referral of a regional center.’ Section 4803 provides that 

a regional center may not recommend admission of a developmentally disabled person to 

a community care or health facility unless the regional center certifies the person to be 

admitted or the person’s parent or conservator does not object. Section 4825 does not 

limit the length of a developmentally disabled person’s commitment, nor does it require 

judicial review of the placement.” (Michelle K., supra, 221 Cal.App.4th at pp. 422-423.) 

“Effective July 1, 2012, the Legislature amended the Welfare and 

Institutions Code to prohibit nondangerous, developmentally disabled persons from being 

admitted to state developmental centers. (§§ 4507, 7505.) Section 7505 now provides 

that a person shall not be admitted to a state developmental center unless the person is 

developmentally disabled and the person is (1) committed by a court to Fairview 

Developmental Center because the person is a danger to self or others under section 6500 

and is suffering an acute crisis as defined in section 4418.7; (2) committed by a court to 

the Porterville Developmental Center’s secure treatment program through the criminal 

justice system or juvenile court system; or (3) a prior resident of a developmental center 
10

who was provisionally released no more than 12 months earlier.” (Michelle K., supra, 

221 Cal.App.4th at p. 423.) 

“These recent Welfare and Institutions Code amendments do not require 

moving nondangerous, developmentally disabled persons living in a state developmental 

center on July 1, 2012, to a different facility. Instead, the amendments require the 

regional center responsible for the committee to conduct a comprehensive assessment and 

‘identify the types of community-based services and supports available to the [person].’ 

(§ 4418.25, subd. (c)(2)(A) & (B).) The regional center must then provide the assessment 

to the individual program planning team to assist it in determining the least restrictive 

environment for the committee. (§ 4418.25, subd. (c)(2)(D).)” (Michelle K., supra, 

221 Cal.App.4th at p. 423.) The Legislature required the regional center to complete this

assessment by December 31, 2015 (§ 4418.25, subd. (c)(2)(C)), and the assessment must 

be “updated annually as part of the individual program planning process for as long as the 

[developmentally disabled person] resides in the developmental center” (§ 4418.25, 

subd. (c)(2)(E)). When a community-based placement is identified and selected, all 

necessary services and supports must be in place before transferring a nondangerous, 

developmentally disabled person from a developmental center to the community-based

living arrangement. (§ 4418.3, subd. (a).)

“[T]he Lanterman Act guarantees an applicant for or recipient of services or 

his or her representative ‘who is dissatisfied with any decision or action of [a regional 

center]’ the right to an administrative fair hearing. (§ 4710.5, subd. (a).) The statute also 

provides detailed provisions for claimants who wish to attempt to resolve the issue 

through a voluntary informal meeting or through voluntary mediation before proceeding 

to an administrative fair hearing. (§§ 4710.5, subd. (a); 4710.6, subds. (a), (b); 4710.7; 

4710.8; 4710.9; 4711.5.)” (Conservatorship of Whitley (2007) 155 Cal.App.4th 1447, 

1459-1460 (Whitley).)
11

“The [Department of Developmental Services] is required to ‘contract for 

the provision of independent hearing officers’ to conduct the hearing. (§ 4712, subd. (b).) 

The hearing officer is required to have special training in the law applicable to the 

developmentally disabled and the services available to them and the law of administrative 

hearings. (§§ 4710.5, subd. (a); 4712, subd. (b).) The agency awarding the contract for 

independent hearing officers ‘shall biennially conduct, or cause to be conducted, an 

evaluation of the hearing officers who conduct’ administrative fair hearings. (§ 4712, 

subd. (n).)” (Whitley, supra, 155 Cal.App.4th at p. 1460.)

The Lanterman Act guarantees the claimant a prehearing exchange of 

potential witnesses and documentary evidence, the opportunity to present witnesses and 

evidence, the opportunity to cross-examine witnesses, the right to appear through counsel 

or other representatives, and the right of access to records. (Whitley, supra, 

155 Cal.App.4th at p. 1460; see Michelle K., supra, 221 Cal.App.4th at p. 424.) Absent a 

showing of good cause, the regional center presents its witnesses and all other evidence 

first followed by the claimant’s presentation of his or her case. (§ 4712, subd. (j); 

Whitley, at p. 1460.) A recording of the proceedings must be made at public expense. 

(§ 4712, subd. (k); Whitley, at p. 1460.)

“Within 10 working days of the fair hearing, the hearing officer must 

‘render a written decision’ containing ‘a summary of the facts, a statement of the 

evidence from the proceedings that was relied upon, a decision on each of the issues 

presented, and an identification of the statutes, regulations, and policies supporting the 

decision.’ (§ 4712.5, subds. (a) & (b).)” (Whitley, supra, 155 Cal.App.4th at 

pp. 1460-1461.) “Either side may seek judicial review of the administrative decision 

through a writ of administrative mandamus.” (Michelle K., supra, 221 Cal.App.4th at 

p. 424.)

In Hop, the Supreme Court examined the constitutionality of section 4825, 

which was the Lanterman Act provision that previously allowed a developmentally 
12

disabled person to be indefinitely confined in a state developmental center based on a 

request by the person’s parent or conservator, a recommendation by a regional center, 

and the absence of any objection from the person or the person’s representative. (Hop, 

supra, 29 Cal.3d at pp. 87-88; Michelle K., supra, 221 Cal.App.4th at pp. 426-427.) The 

Hop court explained personal liberty is a fundamental right both the United States and 

California Constitutions guarantee to all individuals, including developmentally disabled 

individuals, and placing a person in a developmental center is a significant restraint on 

the person’s liberty interests because it is essentially a civil confinement. This restraint 

therefore required application of criminal due process standards to test the confinement’s 

validity, including a judicial hearing to determine whether the person’s disabilities 

warranted the confinement. (Hop, at pp. 89, 92; Michelle K., at p. 427.)

The Hop court also concluded a developmentally disabled person’s equal 

protection rights required a judicial hearing before confining the person in a state 

development center under section 4825. No other similarly situated adult in need of 

protective custody lawfully could be placed in a developmental center without a judicial 

determination the placement was appropriate, including proposed conservatees under the 

Lanterman-Petris-Short Act (LPS Act; § 5000 et seq.) and proposed committees under 

section 6500 et seq., both of whom have a statutory right to judicial review before being

confined in a developmental center. (Hop, supra, 29 Cal.3d at pp. 92-94; Michelle K., 

supra, 221 Cal.App.4th at p. 428.) The Hop court therefore imposed preconfinement

judicial review as a constitutional safeguard to ensure section 4825 placement in a 

developmental center did not deprive a developmentally disabled person of his or her 

personal liberty without due process and equal protection of the laws. This review 

includes the right to a jury trial on demand, application of the beyond reasonable doubt 

standard of proof, and the right to appointed counsel. (Hop, at pp. 93-94; Michelle K., at 

p. 428.) Without this review, the Supreme Court explained placement under section 4825 

would be unconstitutional. (Michelle K., at p. 428.)
13

In Michelle K., we concluded a developmentally disabled person’s 

fundamental right to personal liberty also required periodic judicial review of an ongoing

section 4825 developmental center placement to ensure the person’s disabilities 

continued to warrant the placement. We explained, “The impairment of the committee’s 

personal liberty is not diminished by residing in the developmental center for an extended 

period of time, especially when there are continuing advancements in both the treatment 

of numerous disabilities and the availability of less restrictive services in 

community-based and other facilities. No other class of similarly situated adults may 

lawfully remain in a state developmental center indefinitely without further judicial 

review of their ongoing placement. For example, the LPS Act and section 6500 et seq. 

place limits on the length of confinement for a gravely disabled person or a person 

believed to be a danger to self or others, and both statutory schemes also require judicial 

review to recommit the person or extend the initial confinement. [Citations.] [¶] The 

Lanterman Act does not limit the length of a section 4825 placement or require judicial 

review of the placement. Accordingly, unless Hop requires a further judicial review of a 

section 4825 placement, Michelle and others similarly situated could face a lifetime 

placement in a developmental center based solely on an initial judicial determination 

regarding the placement’s suitability. . . . That result is simply inconsistent with the 

constitutional principles articulated in Hop.” (Michelle K., supra, 221 Cal.App.4th at 

pp. 438-439.)

We emphasized periodic Hop reviews are limited to determining whether 

the developmentally disabled person’s disabilities continue to justify the restraints on the 

person’s fundamental liberty interests that are inherent in a state developmental center 

placement. (Michelle K., supra, 221 Cal.App.4th at p. 443.) The jurisdiction to conduct 

these reviews “does not confer or create jurisdiction to monitor the ongoing placement or 

make decisions regarding the details of the services the developmentally disabled person 

receives.” (Id. at p. 441.) 
14

B. Michelle K. Did Not Require the Trial Court to Review John’s Ongoing Fairview 

Placement After the Harbor Regional Center Dismissed Its Hop Petition

Appellants contend Michelle K. required the trial court to conduct a 

periodic Hop review of John’s ongoing Fairview placement even after the Harbor 

Regional Center withdrew its Hop petition and no longer supported that placement. 

According to Appellants, Michelle K. established that all developmentally disabled 

persons have a constitutional right to periodic judicial review of their placement in a state 

developmental center while confined there. Appellants misconstrue Michelle K. and the 

statutory scheme governing developmental center placement under the Lanterman Act.

Michelle K. did not establish a constitutional right to judicial review of the 

services and supports a developmentally disabled person receives under the Lanterman 

Act. Rather, Michelle K. requires periodic judicial reviews for the limited purpose of 

determining whether a developmentally disabled person’s disabilities continue to justify 

the restraint on personal liberty inherent in a placement at the most restrictive facility 

available under the Lanterman Act. (Michelle K., supra, 221 Cal.App.4th at 

pp. 441-442.) As we explained, the purpose of periodic Hop reviews is to ensure a 

developmentally disabled person’s representative, a regional center, and a developmental 

center do not unconstitutionally deprive the person of his or her liberty by keeping the 

person indefinitely confined in a developmental center without any independent review. 

(Michelle K., at p. 443.) The periodic judicial review Hop and Michelle K. require is a 

constitutional safeguard designed to render an otherwise unconstitutional statutory 

scheme constitutional; it is not a procedural mechanism to help a developmentally 

disabled person enforce his or her right to receive certain services and supports under the 

Lanterman Act. (Michelle K., at pp. 428, 441; see Hop, supra, 29 Cal.3d at pp. 92-94; 

Michael K., supra, 185 Cal.App.4th at 1128, quoting In re Borgogna (1981) 

121 Cal.App.3d 937, 946 [“Hop does not address the issue ‘where the [regional] center 
15

seeks to deescalate or make less restrictive the placement, but the ward opposes such a 

transfer’”].)

Once the Harbor Regional Center withdrew its support for John’s 

placement at Fairview, Hop and Michelle K. no longer required judicial review to ensure 

John’s disabilities justified his ongoing confinement in a state developmental center 

because John may not remain at Fairview without the Harbor Regional Center’s approval. 

As explained above, the Harbor Regional Center is responsible for determining John’s 

eligibility to receive Lanterman Act services and supports, assessing his needs, and 

coordinating and delivering his services and supports. (Michelle K., supra, 

221 Cal.App.4th at p. 422; Capitol People, supra, 155 Cal.App.4th at pp. 682-683.) John

could not be admitted to Fairview without the Harbor Regional Center’s approval, nor 

may his admission may not be renewed without its approval. (See § 4653; Hop, supra, 

29 Cal.3d at p. 87; Michelle K., at pp. 423, 426-427.)4 

Although Appellants contend the trial court must review John’s Fairview 

placement because they believe it is the least restrictive placement capable of meeting his

needs, they lack the authority to keep John at Fairview without the Harbor Regional 

Center’s approval, and therefore a periodic Hop review is unnecessary. They rely on 

their authority as John’s limited conservator to fix his residence, but they were appointed 

his coconservators under the Probate Code, and Probate Code conservators lack the 

 

4 Because section 4653 states “no developmentally disabled person shall be 

admitted to a state hospital except upon the referral of a regional center” (italics added), 

Appellants contend the section only applied to John’s initial admission to Fairview, and 

therefore they may maintain John’s Fairview placement without the Harbor Regional 

Center’s approval. Appellants cite no authority to support this contention, and ignore the 

Harbor Regional Center’s responsibilities to determine eligibility, assess needs, and 

coordinate and deliver services and supports. Moreover, Appellants overlook that John

has remained at Fairview based on a series of court orders authorizing placement for one 

year subject to further court approval. Each time the Harbor Regional Center applied for 

court approval it therefore was essentially a new placement. (See Michelle K., supra, 

221 Cal.App.4th at pp. 437-438.)
16

authority to place a conservatee in a state development center without court approval.

5

 

(See Michelle K., supra, 221 Cal.App.4th at pp. 425, fn. 3, 429; People v. Karriker

(2007) 149 Cal.App.4th 763, 779-780.) In recognition of this limitation, the court order 

appointing Appellants only authorizes them to “request” John’s placement at Fairview; 

they may not place him there without court approval. Appellants also point to their

statutory right as John’s conservator to actively participate in the individual program 

planning process required to identify the services and supports the Harbor Regional 

Center will provide or arrange for John. (See § 4646, subd. (b).) That right of 

participation, however, merely ensures Appellants have the opportunity to provide input 

regarding John’s placement; it does not allow them to override the Harbor Regional 

Center’s placement determination reached through the individual program planning 

process. (See Capitol People, supra, 155 Cal.App.4th at pp. 698-699 [“while the 

Lanterman Act does demonstrate an intent to include family members and conservators in 

the decision-making process affecting persons with disabilities [citations], it provides 

them scant concrete rights”].)

The Harbor Regional Center’s withdrawal of its Hop petition and support 

for John’s ongoing Fairview placement therefore transformed this matter from an 

independent review to ensure the placement’s constitutionality into a dispute between 

Appellants and the Harbor Regional Center about which specific facility provides the 

least restrictive placement capable of meeting John’s needs. That dispute is not the 

proper subject of a periodic Hop review. (See Michelle K., supra, 221 Cal.App.4th at 

p. 444 [periodic Hop review “is limited to deciding whether appropriate efforts have been 

 

5

Prior to July 1, 2012, a conservator appointed under the LPS had authority 

to place a conservatee in a state developmental center or other locked treatment facility if 

the conservator determined it was the least restrictive placement. (Michelle K., supra, 

221 Cal.App.4th at p. 425.) The 2012 amendments to the Welfare and Institutions Code 

withdrew that authority. (Ibid.)
17

made to identify a less restrictive facility that satisfies all of Michelle’s needs and 

whether at least one such facility exists”].)

The Lanterman Act’s “fair hearing procedures provide the exclusive 

remedy for a developmentally disabled person’s legal representative to object to a 

community placement decision.” (Michelle K., supra, 221 Cal.App.4th at p. 442; see 

Michael K., supra, 185 Cal.App.4th at pp. 1125-1126; Whitley, supra, 155 Cal.App.4th at 

pp. 1462-1464.) In Michael K. and Whitley, the Courts of Appeal held a dispute over 

whether a developmentally disabled person should remain in a state developmental center 

or be transferred to a community-based placement must be resolved through the 

Lanterman Act’s fair hearing process, and judicial review may be sought only after 

exhausting that exclusive administrative remedy. (Michael K., at pp. 1116-1117, 

1125-1126; Whitley, at pp. 1455-1457, 1462-1464.) As the Whitley court explained, this 

conclusion is compelled by the comprehensive nature of the administrative procedures 

the Lanterman Act establishes, the Legislature “expressly making [the] fair hearing 

[process] the exclusive remedy for issues relating to the provision of services” under the 

Lanterman Act, and the common law exhaustion of administrative remedies doctrine, 

which makes “‘exhaustion of the administrative remedy . . . a jurisdictional prerequisite 

to resort to the courts.’” (Whitley, at p. 1463.)

In deciding Michelle K., we took care to distinguish between the nature and 

purpose of a periodic Hop review, and the nature and purpose of the administrative fair 

hearing process: “Hop requires periodic independent reviews to ensure a section 4825 

developmental center placement does not violate a developmentally disabled person’s 

constitutional rights. The reviews ensure the person’s disabilities continue to warrant 

placement in the most restrictive environment available under the Lanterman Act. In 

contrast, the fair hearing procedures provide an administrative process for a 

developmentally disabled person or her representative to challenge a regional center’s or 

developmental center’s decision to change the person’s placement or other services. 
18

Through the process, a mediator or hearing officer with subject matter expertise resolves 

specific challenges to a decision changing the services the developmentally disabled 

person receives.” (Michelle K., supra, 221 Cal.App.4th at p. 443.) Michelle K. therefore 

did not require the trial court to conduct a periodic Hop review after the Harbor Regional 

Center withdrew its support for John’s ongoing Fairview placement. Instead, under

Michelle K. Appellants may invoke the fair hearing process once the Harbor Regional 

Center identifies a specific facility as John’s new placement. 

Appellants also contend Michelle K. required the trial court to review 

John’s Fairview placement because it has been more than five years since John’s 

placement has been judicially reviewed because of the delays in resolving earlier 

disputes. The periodic judicial review mandated by Michelle K., however, is forward 

looking, asking whether John’s disabilities continue to justify his ongoing placement at 

Fairview. The Harbor Regional Center already has answered that question by 

withdrawing its Hop petition and asserting John’s disabilities do not warrant his

continued placement at Fairview. A periodic Hop review therefore is not necessary to 

make that determination, and, as explained above, the dispute between Appellants and the 

Harbor Regional Center about the appropriate placement for John must be resolved 

through the Lanterman Act’s fair hearing process. 

Moreover, John’s constitutional rights are not violated by the delays 

inherent in the process of identifying and moving him to the least restrictive facility 

capable of meeting his needs. As we recognized in Michelle K., John “should not be 

transferred until all issues regarding h[is] new placement are resolved [because] . . .

‘“[his] precipitous release . . . to [his] famil[y or] a[] community facilit[y] unprepared to 

care for [him] could be both disruptive to [his] treatment program and potentially harmful 

to [John] and the community.”’” (Michelle K., supra, 221 Cal.App.4th at p. 444.) The 

Welfare and Institutions Code also prohibits John’s transfer to a new facility until all 

necessary services and supports are in place. (§ 4418.3, subd. (a).) If the delays inherent 
19

in finding a new placement for John and transitioning him to it become excessive or 

unreasonable, then Appellants, or the Public Defender if it can make the showing we 

described in Michelle K. (Michelle K., supra, 221 Cal.App.4th at pp. 431-432), may 

petition on John’s behalf for habeas corpus relief to compel judicial review of the efforts 

to move John to a new facility.6

The record does not reveal whether the Harbor Regional Center has 

identified a specific community-based facility that it contends is capable of meeting 

John’s needs. The 2012 amendments to the Welfare and Institutions Code required the 

Harbor Regional Center to conduct a comprehensive assessment of John’s needs and 

identify the types of community-based services and supports that are capable of meeting 

those needs. (§ 4418.25, subd. (c)(2)(A) & (B).) The Harbor Regional Center was 

required to complete that assessment by the end of 2015, and then to share it with John’s 

individual program planning team to assist it in determining the least restrictive 

placement available for him. (§ 4418.25, subd. (c)(2)(C) & (D).) We presume the 

Harbor Regional Center has performed its statutory duties, and if it has not, Appellants,

or potentially the Public Defender, may bring an action to compel the Harbor Regional 

Center to do so. A periodic Hop review, however, may not be used for that purpose.

Finally, Appellants contend the trial court should have proceeded with the 

periodic Hop review because Michelle K. recognized Appellants’ due process right to 

have a jury determine whether John should remain at Fairview regardless of Harbor 

Regional Center’s position. Not so. Michelle K. addressed John’s constitutional rights as 

a developmentally disabled person confined in a state developmental center under the 

 

6

There is no need for the Harbor Regional Center to seek habeas corpus 

relief on John’s behalf because it can overcome any delays injected into the process by 

Appellants or anyone else by determining John should be transitioned to a particular 

facility and thereby compelling Appellants to invoke the fair hearing process to challenge 

that determination.
20

Lanterman Act. Although Appellants may exercise some of John’s rights as his

coconservators, the rights belong exclusively to John. (Capitol People, supra, 

155 Cal.App.4th at p. 699 [“under the Lanterman Act it is the individual with a 

developmental disability—not his or her family, friends, or conservator—who is afforded 

all the legal rights and responsibilities guaranteed by the United States and California 

Constitutions”].) Nothing we said in Michelle K. recognized any right in Appellants to 

have a jury determine John’s proper placement. Any conclusion to the contrary would 

allow Appellants to circumvent the Lanterman Act’s fair hearing process as the exclusive 

means for resolving disputes about the proper services and placement for a 

developmentally disabled person.

C. The Trial Court Did Not Error In Dismissing the Harbor Regional Center’s Hop

Petition

Appellants also contend the trial court erred in granting the Harbor 

Regional Center’s request to dismiss the Hop petition and related proceedings because 

Appellants filed a notice of joinder in the petition that prevented the Harbor Regional 

Center from dismissing it. We disagree.

Appellants do not dispute that Code of Civil Procedure section 581, 

subdivision (b), grants a plaintiff or petitioner the right to dismiss its pleading at any time 

before trial, nor do Appellants dispute that section applies to the Harbor Regional 

Center’s Hop petition. Instead, Appellants contend case law recognizes an exception to a 

plaintiff’s or petitioner’s right to dismiss an action when “the plaintiff or petitioner is not 

the sole party in interest on plaintiff’s side and, though the plaintiff has instituted the 

proceeding, is not entitled to terminate it.” (See 6 Witkin, Cal. Procedure (5th ed. 2008) 

Proceedings Without Trial, § 292, p. 744.) According to Appellants, they and John, as 

parties in interest, may require the trial court to decide the Hop petition and determine

whether John’s disabilities continue to justify his Fairview placement. We do not find 

this contention persuasive because it relies on a fundamental misunderstanding 
21

concerning the nature of a periodic Hop review and the issues arising once the Harbor 

Regional Center withdrew its support for John’s continued placement at Fairview.

As explained above, the sole purpose of a periodic Hop review is to 

determine whether a developmentally disabled person’s disabilities continue to justify the 

restraints on the person’s fundamental liberty interests that are inherent in a section 4825 

placement in a state developmental center. Here, the need for that review ended when the 

Harbor Regional Center withdrew its support for John’s continued placement at Fairview 

and sought to dismiss the Hop petition. The disagreement between Appellants and the 

Harbor Regional Center over whether John should be transferred to a community-based 

facility or remain at Fairview is a dispute over what specific services John is entitled to 

receive, and must be resolved through the Lanterman Act’s fair hearing process. Judicial 

review may be sought only after that administrative remedy has been exhausted. After 

the Harbor Regional Center withdrew its support for John’s continued Fairview 

placement, there was nothing for the trial court to decide on the Hop petition and neither 

Appellants nor John had any interest in the petition that prevented the Harbor Regional 

Center from dismissing it.

Appellants’ joinder in the Hop petition before the Harbor Regional Center 

sought to dismiss the petition did not prevent the trial court from dismissing the petition. 

Without the Harbor Regional Center’s support for John’s ongoing placement at Fairview, 

there is nothing in which Appellants may join because, as explained above, John cannot 

remain at Fairview without the Harbor Regional Center’s approval. 

Furthermore, Appellants’ joinder was improper and ineffectual. Parties 

voluntarily may join together in filing an action or seeking relief from the court in their 

own name. (Code Civ. Proc., § 378.) Similarly, if a person already is a party to an action 

or proceeding, the person may file a cross-complaint or cross-petition seeking affirmative 

relief in the person’s own name (Code Civ. Proc., § 428.10), and if a person is not a party 
22

to an action or proceeding, the person make seek leave of court to intervene and request 

relief in the person’s own name (Code Civ. Proc., § 387). 

A party also may join in the legal or factual arguments another party makes 

in a motion or other request for relief, but that “joinder” does not entitle the joining party 

to any relief. (Decker v. U.D. Registry, Inc. (2003) 105 Cal.App.4th 1382, 1390-1391, 

superseded by statute on another issue as stated in Chitsazzadeh v. Kramer & Kaslow

(2011) 199 Cal.App.4th 676, 685, fn. 7; Village Nurseries v. Greenbaum (2002) 

101 Cal.App.4th 26, 46-47.) For example, Decker involved a notice of joinder that, like 

Appellants’, simply stated one party joined in another party’s motion without requesting 

any relief in the name of the joining party. (Decker, at p. 1386.) We explained the

joining party lacked standing to appeal the trial court’s ruling on the underlying motion 

and was not bound by that ruling because the joining party had not made a proper motion 

or requested relief in its own name. (Id. at p. 1391; compare Barak v. The Quisenberry 

Law Firm (2006) 135 Cal.App.4th 654, 660-661 [party’s joinder in another party’s 

motion entitled joining party to relief because joinder expressly requested relief in name 

of joining party and explained why arguments made in other party’s motion entitled 

joining party to relief].)

Appellants cite no authority that allows one party to unilaterally join in 

another party’s pleading or request for relief and thereby prevent that party from 

dismissing its pleading or request. Accordingly, we conclude Appellants’ notice of 

joinder did not prevent the trial court from dismissing the Harbor Regional Center’s Hop

petition.7

 

7 Appellants also contend the trial court’s dismissal of the Hop petition 

violated the writ of mandate we issued in the earlier proceeding. Not so. We merely 

instructed the trial court to conduct a hearing on the Harbor Regional Center’s Hop

petition. We did not instruct the trial court to review John’s placement in the face of the 

Harbor Regional Center’s conclusion the placement no longer was appropriate.
23

III

DISPOSITION

The order is affirmed. In the interest of justice, all parties shall bear their 

own costs on appeal.

ARONSON, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

FYBEL, J.