Special Fee Shifting Statute: Attorney Knowing That A Torts Claim Had An Invalid Proof Of Service, Leading To A County Directed Verdict, Exposed Plaintiff To A Substantial Fees Award

Losing Plaintiff Ordered To Pay $121,837.50 In Attorney’s Fees And $11,637.85 In Costs

            Government Code section 1038 penalizes a plaintiff who files and pursues an action subject to a tort claims presentation to defense costs against the governmental entity, when a directed verdict is granted, where plaintiff proceeded in bad faith and without reasonable cause.  Plaintiff in Harrington v. County of El Dorado, Case No. C092559 (3d Dist. Nov. 18, 2021) (unpublished) learned the pain of that penalty all too well. 

            There, a directed verdict was granted on all causes of action in a water drainage damage case which required proper presentation of a torts claim.  The problem is that plaintiff’s attorney knew that there was no valid proof of service on the claim letter—the service was purportedly made in 2016 on a 2017 Judicial Council form, with no explanation how such a later date form could be used.  Unfortunately for plaintiff, the attorney’s knowledge of this defect was imputed to his/her client.  (Hall v. Regents of University of California, 43 Cal.App.4^th 1580 1586 (1996).)  Given that reality, the appellate court affirmed the lower court’s award of defense fees of $121,837.50 and costs of $11,637.50 against plaintiff.