228 Cal. App. 4th 215
Cal. Ct. App.2014Background
- Plaintiff sued State and City for dangerous condition of public property after a beach sand escarpment collapsed; discovery showed City (not State) owned and maintained the beach.
- State warned plaintiff's counsel (James McKiernan) it would seek sanctions under Code Civ. Proc. § 1038 if the complaint was not dismissed; counsel did not dismiss.
- State and City obtained summary judgment based on governmental immunity for natural conditions on unimproved public property (Gov. Code §§ 831.2, 831.21).
- The trial court found plaintiff lacked reasonable cause and good faith and awarded defense costs (including attorney fees) under CCP § 1038 against both plaintiff and her attorney.
- McKiernan appealed solely as to the award against him; the Court of Appeal addressed whether § 1038 authorizes imposing defense costs on counsel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether CCP § 1038 authorizes awarding defense costs (including attorney fees) against plaintiff's counsel | McKiernan argued § 1038 does not authorize imposing defense costs on counsel because the statute names only parties (plaintiff, petitioner, cross-complainant, intervenor) | State argued § 1038 is a protective remedy analogous to malicious prosecution and should permit fees against both plaintiff and counsel | Court held § 1038 does not authorize defense costs against counsel; statute’s text refers only to parties and cannot be judicially expanded to include attorneys |
Key Cases Cited
- Kobzoff v. Los Angeles County Harbor/UCLA Medical Ctr., 19 Cal.4th 851 (discusses § 1038 and malicious-prosecution context)
- Carroll v. State of California, 217 Cal.App.3d 134 (trial court previously awarded § 1038 costs against plaintiffs and counsel; appellate opinion did not decide counsel liability issue)
- Sheldon Appel Co. v. Albert & Oliker, 47 Cal.3d 863 (discusses sanctions and statutory frameworks to weed out meritless claims)
- Doyle v. Superior Court, 226 Cal.App.3d 1000 (discusses limits on imposing sanctions against attorneys for advancing client positions)
- People v. Buena Vista Mines, Inc., 48 Cal.App.4th 1030 (explains judicial reluctance to add language to statutes)