Metropolitan News-Enterprise


Monday, December 29, 2003


Page 1


Attorney Fees Not Available as Sanctions Under Summary Judgment Statute, C.A. Rules


By a MetNews Staff Writer


The “reasonable expenses” that may be awarded as sanctions for presenting an improper affidavit as part of a summary judgment motion do not include attorney fees, the Third District Court of Appeal has ruled.

The court Wednesday overturned a San Joaquin Superior Court judge’s order requiring the state to pay more than $28,000 in fees to the attorney for a man who sued the California Department of Transportation, among others.

 William F. Collins claims that Caltrans bears a portion of the blame for the injuries he allegedly sustained when a teenager threw a chunk of broken concrete at his semi-tractor-trailer as it was traveling on I-5 in Stockton in 1997. The agency negligently designed the crossing at which the incident occurred, allowing easy access to pedestrians and giving pedestrians access to objects that can be thrown at passing motorists, the plaintiff alleged.

 Caltrans moved for summary judgment, arguing that it could not be held liable because it lacked actual or constructive notice of a dangerous condition. Attached to the motion was a declaration from a retired Caltrans engineer, who said that after a review of the agency’s database and the deposition testimony of an officer who reviewed the California Highway Patrol’s database, it appeared that there had been no reports of anyone throwing rocks at motorists in the area for nine years.

 The plaintiff responded with deposition testimony from two CHP officers that there had been prior reports of rock throwing in the same general vicinity prior to the incident leading to the suit.

 Caltrans later withdrew the motion, saying it was doing so because a referee had held that the plaintiff was entitled to additional discovery, which had not been completed.

Collins moved for sanctions under Code of Civil Procedure Sec. 437c(i), which read at the time:

“If the court determines at any time that any of the affidavits are presented in bad faith or solely for purposes of delay, the court shall order the party presenting the affidavits to pay the other party the amount of the reasonable expenses which the filing of the affidavits caused the other party to incur.  Sanctions shall not be imposed pursuant to this subdivision, except on notice contained in a party’s papers, or on the court’s own noticed motion, and after an opportunity to be heard.” 

The Legislature subsequently changed “shall not” to “may not” and moved the language to Sec. 437c(j).

Caltrans argued that it did not act in bad faith, that it could not be sanctioned as a matter of public policy, and that the statute does not permit an award of attorney fees. Judge Carter P. Holly disagreed as to all three grounds and awarded the plaintiff $28,725.

But Justice Richard Sims III held that Caltrans was correct in arguing that attorney fees could not be awarded under the statute, and said it was unnecessary to reach the agency’s other contentions.

He cited Bauguess v. Paine (1978) 22 Cal.3d 626, holding that absent express statutory authority, a court has no power to award attorney’s fees as sanctions.

The Legislature, Sims noted, has specifically authorized attorney fee awards as sanctions for filing papers for an improper purpose, pursuant to Code of Civil Procedure Secs. 128.5 and 128.7. It has also allowed courts to award fees as sanctions for misusing subpoena power, for discovery abuse, for improperly seeking to invoke the court’s jurisdiction in a child custody case, for filing a bad faith or frivolous action under the Public Safety Officers Procedural Bills of Rights Act, or for bad faith actions or tactics in proceedings governed by the Administrative Procedure Act or the workers’ compensation statues, the justice observed.

But there is no such express language in Sec. 437c(j), the justice pointed out. Nor does the legislative history indicate that lawmakers intended to allow such awards when they revised the summary judgment statute, Sims commented.

The case is Collins v. State Department of Transportation, C041238.


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