Metropolitan News-Enterprise


Thursday, July 24, 2014


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Cost-Shifting Statute Does Not Support Award Against Plaintiff’s Counsel, Court of Appeal Rules


By ANN ANOOSHIAN, Staff Writer


A statute authorizing an award of defense costs, including attorney fees, against a plaintiff who files a frivolous tort action against a public entity does not permit an award against the plaintiff’s lawyer, the Court of Appeal for this district ruled yesterday.

The court reversed a San Luis Obispo Superior Court judge’s order holding James McKiernan liable to the state and to the City of Morro Bay for more than $11,000 in fees and costs.

McKiernan represented Kathryn Settle in an action for an alleged dangerous condition of public property after a sand escarpment on the beach collapsed, causing Settle to fall into the water and rocks.

As discerned during discovery, the state did not own, control, or maintain the beach. Rather, the city owned and maintained the property. The state warned McKiernan that it would seek “sanctions” pursuant to Code of Civil Procedure §1038 if the complaint was not dismissed.

The statute mandates an award of defense costs, including attorney fees, where a court determines that “a plaintiff, petitioner, cross-complainant, or intervenor” did not bring “the proceeding with reasonable cause and in the good faith belief that there was a justiciable controversy under the facts and law which warranted the filing of the complaint.”

The state and city were granted summary judgment on the ground that the action was barred by a statutory immunity under the Government Code for injuries caused by a natural condition on unimproved public property such as a beach.

Judge Martin J. Tangeman also awarded fees and costs under §1038, finding that the plaintiff had knowledge of the immunities afforded defendants prior to the motion for summary judgment and rejecting counsel’s argument that the statute only authorizes an award against a party.

Justice Kenneth Yegan said the plaintiff’s lawyer was correct, explaining:

“A patron orders a hamburger from the menu at a diner and asks the server if he can substitute edamame for french fries. ‘No substitutions,’ says the server. We, like the server who cannot add or substitute entries on the menu, cannot add or substitute words in a statute.”

Nothing in the statutory language suggests that there is authority for an award against counsel, the justice wrote.

He continued, citing Black’s Law Dictionary:

“The Latin phrase ‘expressio unius est exclusio alterius’ comes to mind. This is a ‘canon of construction holding that to express or include one thing implies the exclusion of the other, or of the alternative.’”

Carroll v. State of California (1990) 217 Cal.App.3d 134, which upheld an award of costs against both plaintiffs and counsel, is not controlling because the issue of whether the statute authorizes sanctioning counsel was not litigated, Yegan said. A treatise citing Carroll as authority for an award against counsel got it wrong, the justice explained.

 Yegan noted that Code of Civil Procedure §128.7, among other authorities, permit imposition of sanctions or fees against counsel, but pointed out that the attorney general in Settle’s case made a conscious decision, based on Carroll, not to seek fees under §128.7.

The case is Settle v. State of California, 14 S.O.S. 3781.


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