Both Prongs of Disjunctive Section 1021.7 Elements Satisfied Here.
Code of Civil Procedure section 1021.7 is a special-fee shifting provision which allows defendants in a peace officer damages action to recover reasonable attorney’s fees in the court’s discretion upon a finding “that the action was not filed or maintained in good faith and with reasonable cause.” The “and” language in the statute has been interpreted as disjunctive, meaning fee recovery can be had if either prong is found to exist. (Salazar v. Upland Police Dept., 116 Cal.App.4th 934, 949 (2004); see also Kobzoff v. Los Angeles County Harbor/UCLA Medical Center, 19 Cal.4th 851, 855 (1998) [same interpretation of similar language in CCP § 1038 regarding costs].)
Women police officers inspecting and practicing with handguns. 1910 – 1920. Library of Congress.
In Mundell v. City of Simi Valley and Simi Valley Police Dept., Case No. B234915 (2d Dist., Div. 6 Aug. 16, 2012) (unpublished), plaintiff was hit with an $11,857.50 fee award after defendants successfully demurred because plaintiff’s late tort claim filing was not allowed based on naming a wrong entity. Plaintiff’s attorney tried to shift blame to the client, arguing he relied on information from the client and only knew about the claim flaw after receiving the defense demurrer. The main problem is the defense found evidence which it presented at the fee proceeding showing that the attorney had received the claim well before the demurrer, which resulted in a huge loss of credibility before the trial court.
Plaintiff’s appeal was unavailing (although we surmise the attorney did it for protective personal reasons). Based on the damning evidence about attorney’s knowledge of the defective torts claim, there was substantial evidence to support both prongs of section 1021.7.
The challenge to the amount of the fees did not work either. Defendants had requested $46,639.50, but the lower court only awarded about 25% ($11,857.50). As a result of the affirmance, the defense will be able to apply for more attorney’s fees for winning on appeal. Bada boom!