$11,457.65 Fee Award Goes POOF!
We love the opening and closing in Settle v. State of California (McKiernan), Case No. B249236 (2d Dist., Div. 6 July 23, 2014) (published), written by Justice Yegan on behalf of a 3-0 panel.
John Vachon, photographer. “Glorified Hamburgers”. Oct. 1938. Library of Congress.
The opening goes like this: “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.”
Edamame. Tammy Green. Wikimedia Commons.
CCP § 1038 requires a mandatory award of defense costs (which includes reasonable attorney’s fees) where the trial court grants summary judgment and finds the plaintiff lacked reasonable cause and good faith in filing or maintaining a tort action against a public entity. The lower court awarded $11,457.65 in fees and costs under this provision against a plaintiff’s counsel after a summary judgment was granted based on certain statutory immunities that were not overcome.
The holding in Settle is simple: section 1038 defense costs (which encompass attorney’s fees) cannot be awarded against a party’s counsel.
Was there a remedy which the Attorney General could seek on behalf of the state in this one? You betcha, said the appellate court, so that takes us to the ending: “[CCP] section 128.7 provides for attorney fees sanctions against an attorney. The Attorney General … here elected not to seek section 128.7 relief. Unless and until the Legislature amends section 1038 to authorize an award of ‘sanctions’ against counsel, defense costs and fees may not be imposed against counsel pursuant thereto. Just as the server at the diner said, ‘No substitutions.’”
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