Metropolitan News-Enterprise


Friday, February 20, 2004


Page 3


High Court Rules Statute Did Not Create Right to Fees in Libel Suits


By a MetNews Staff Writer


A 1981 law dealing with suits against peace officers and public entities did not create a general right to attorneys’ fees in libel and slander actions if they were brought in bad faith, the state Supreme Court ruled yesterday.

The decision resolves a conflict between decisions of the Court of Appeal and reverses a 2001 ruling by the First District’s Div. Four. That court declined to follow Planned Protective Services v. Gorton (1988) 200 Cal.App.3d 1, in which the Fourth District’s Div. One held that Code of Civil Procedure Sec. 1021.7 authorizes an award of fees in an action for libel or slander only if a peace officer or an officer’s public employer is a party.

The statute allows fees for prevailing defendants in an action for damages “arising out of the performance of a peace officer’s duties, brought against a peace officer—, or against a public entity employing a peace officer or in an action for libel or slander” if the action was not filed or maintained in good faith and with reasonable cause.

Justice Kathryn M. Werdegar, writing for a unanimous court, said the First District erred in reaching a result at odds with Gorton. The First District, in an opinion by Justice Patricia Sepulveda, reversed San Francisco Superior Court Judge A. James Robertson II, who had denied fees to Richard Szeto and Anthony Lincoln after they prevailed in the slander action filed against them by attorney Craig K. Martin. Martin contended the two slandered him and injured his business by telling others he was “doing cocaine.”

Martin failed to appear at an arbitration hearing, sought de novo review of the arbitrator’s ruling against him, and then failed to oppose the defendants’ summary judgment motion, which Robertson granted.

“The single question before us is whether section 1021.7 authorizes courts to award attorneys’ fees in actions for libel and slander generally, or only in actions involving peace officers,” Werdegar wrote. “We conclude the latter interpretation is correct.”

Though she conceded that, “[r]ead literally and in its grammatical context,” the statutory language could be understood to apply to all actions for libel and slander, Werdegar said the legislative history established that the statute as a whole was only intended to apply to actions involving peace officers and their employers.

She declared:

“The statute is ambiguous. If the section had the meaning defendants claim, it would likely violate article IV, section 9, of the California Constitution, which provides that ‘[a] statute shall embrace but one subject, which shall be expressed in its title.’—The title of the act that became section 1021.7 is ‘[a]n act to add Section 1021.7 to the Code of Civil Procedure, relating to peace officers, and making an appropriation therefore.’—Because we presume the Legislature intended to comply with the state Constitution, we must at least consider the possibility that all parts of section 1021.7, consistently with its title, relate to peace officers.”

The First District’s opinion, if allowed to stand, would create “a significant and heretofore unrecognized† exception to the general rule that all parties to litigation must pay their own attorneys’ fees,” Werdegar said.

The language about libel and slander was added by then-Assemblywoman Maxine Waters, Werdegar noted. Letters from the bill’s sponsors to the governor urging him to sign it consistently indicate the amendment “was offered to make the bill reciprocal, by providing that anyone defending against a frivolous action for libel or slander brought by a peace officer would also be able to receive an award of attorney fees,” she said.

The justice reasoned:

“[W]hile the Legislature wished to make section 1021.7 reciprocal, in the sense of deterring baseless actions for libel or slander filed against citizens in retaliation for complaints about the manner in which peace officers have performed their duties, nothing in the legislative history suggests a broader intent to make attorneys’ fees available in libel and slander actions generally.”

The case is Martin v. Szeto, 04 S.O.S. 783.


Copyright 2004, Metropolitan News Company