Garcia v. Santana

Dist., Second Div. Seven. May B206513. [No. 2009.] al., Plaintiffs, et RITO GARCIA al., Defendants;

PAULINA SANTANA et GREEN,

SHARON Intervener and Respondent; al.,

CUAUHTEMOC LOPEZ et Interveners and Appellants.

Counsel Adams and A. Kessler Mark O’Brien for Interveners and Appellants. Bahar Law Office and Sarvenaz Bahar for Intervener and Respondent. Opinion

ZELON, J. seek of the trial review court’s determination to Appellants award no fees who became against and respondent, this self-represented during litigation. Acknowledging they might awarded, unable to collect amount of such concede any nonetheless they that they do not wish tenants who have “to think that free to disputes they’re file or defend without risk of to a fee award.” fee litigation Using exposure awards as an instrument access to the courts is neither the deny policy California, Indeed, the State of nor the of the statute in purpose question. Court, 10.960, California (b), Rules of rule subdivision effective July adopted 1, 2008 states: access to for is a “Providing justice litigants self-represented for California courts.” We remand to the trial court for reconsidera priority tion of the amount of fees consistent with these principles.

FACTUAL PROCEDURAL BACKGROUND AND Plaza,1 and tenant of Amar a housing Sharon Green was a member there, She had lived with the assistance for low-income tenants. cooperative until she was evicted years of a federal housing subsidy, approximately 2007. January In other tenants of the filed suit February complex against directors; are not at here. and its those issue managers pleadings complex Green to intervene in that October 2006. initially sought litigation April intervention, 2007, she filed her first amended viola- alleging complaint Plaza in the of the Code and the of Amar bylaws tions Corporations of the she was Although by management operation complex. represented 7, 2007, time, her on and she thereafter July counsel at that counsel withdrew Amar Plaza have not acted as a litigant. provided self-represented of the claims this court with a record sufficient to determine disposition were voluntar- the other those claims although they suggest raised parties, dismissed; any we cannot determine outcome of ily portion claims, than Green’s or determine whether merits other litigation ever determined. matter in which she intervened were withdrew, the Amar her Green was served with after counsel Twenty days did not the trial motion for She summary judgment. respond; Plaza parties’ 5, and entered judgment motion on November court granted unopposed We have not been asked to review that judgment.2 on November 2007. the Amar Plaza moved for Following entry judgment, $48,328 section subdivi- to Civil Code attorney’s pursuant and after Green filed (c). After briefs were filed parties, sion several claim of indigency, including various documents to her copy support 68511.3, Code section waiver of court fees and costs under Government financial condition on awarded no fees in of Green’s attorney’s light 4, The Amar Plaza timely appealed. March 2008. parties OF REVIEW

STANDARD which legal fees is a issue attorney’s The issue of a entitlement party’s 1169, Cal.4th (2006) Personnel Bd. 37 (Connerly de novo. v. State we review 1 Lopez, Cuauhtemoc Rosario complaint in the in intervention were: Defendants named Inc., Acevedo, Sierra, They will be Frank and Javier Flores. Vigil, Amparo Rampart Properties parties. as the Amar Plaza referred to for ease of reference summary judgment. not included in the record the motion The Amar Plaza have merit, are unable to make that claims were without we Although they assert that Green’s seeking challenge appeal an order on us. The determination based on the record before 1281, (Maria (1987) P. v. Riles 43 Cal.3d adequate an record. provide has the burden to 872, 932].) Cal.Rptr. 743 P.2d 1295-1296 [240 788, Leamon v.

1175-1176 Krajkiewcz 1]; Cal.Rptr.3d (2003) [39 U.S.A., 424, Carver v. Chevron 362]; Cal.App.4th Cal.Rptr.2d [132 Inc. (2002) 132, However, 569].) Cal.App.4th Cal.Rptr.2d determination of the amount of fees to be awarded is reviewed for abuse of MHC Limited Financing City (See, Two v. discretion. Partnership e.g., Santee (2005) 125 1372, Salawy 622]; Cal.Rptr.3d Ocean Towers Housing Corp. 121 Cal.App.4th 669 [17 427].)

The trial court in this matter acknowledged under the right, governing statute, for the to recover their prevailing parties fees. We attorney’s review so, determination de novo. done Having it was then obligated determine the amount of is, fees to be awarded. It is that determination that base, at issue in this We will appeal. disturb the trial court’s exercise of discretion in the determination of a reasonable fee where “only (Fed-Mart there has been a manifest abuse of v. Pell Corp. discretion.” Inc. Enterprises, 525]; Cal.App.3d see Press, also Seever v. Copley Inc. 141 Cal.App.4th 1556-1557 [47

DISCUSSION Statute Governing Supports Award Attorney’s Fees Green, intervention, her complaint sued Amar Plaza as a common interest to the development, subject Common Davis-Stirling Interest Code, (Civ. Act Development 1350 et on claims seq.), § from its arising bylaws. Civil Code section (c) subdivision “In an action provides: documents, enforce the governing shall be awarded prevailing party reasonable fees and costs.” The Amar Plaza assert that the action is deemed one properly documents, to enforce the governing and thus that the trial court was to award reasonable fees to the prevailing parties.

Green does not that the dispute Amar Plaza were entitled to seek an parties statute, award of and, fees to the pursuant for of this purposes appeal, establishes no basis to disturb that determination the court below. Nor does any the court’s party dispute of the amount analysis of fees claimed. We find no error in legal either arises, determination. The issue before this court instead, from the determination that the reasonable amount of fees in this case, circumstances, zero, all of the considering was based on properly only Green’s financial condition. We turn to that determination now. Trial Court in Considering

The Did Not Abuse Its Discretion Green’s Financial Condition in the Amount Fees Setting Attorney’s of

The Amar that their as legal Plaza assert entitlement parties statute, in the the trial court from reflected Green’s prohibits considering condition, the in the losing financial as amount of fees determining party, be awarded. that to hold would in this and future otherwise Urging impose the extra cases burdensome on would result in discovery obligations parties, courts, in the would or insolvent proceedings encourage “poor parties and would cause confusion because of pursue litigation” protracted, pointless law, a lack of in the case court to rule that the trial guidance they urge this cannot consider the of fee award on the litigant properly impact as that who is made follows: “While against except recognize Appellants Green, financial have fees trouble from Green’s they may collecting any future, work or luck. condition could in whether from hard change good Moreover, since Amar Plaza has other tenants who sometimes have many it, tenants to or with Amar Plaza does not want those legal corporate disputes file of to a think that free to or defend without risk they’re litigation exposure fee award.”3 however, statute,

The in the nothing Amar Plaza parties, point create that additional its intended history, indicating Legislature California, the courts in whether indigent persons barriers access to subsidized or not. None the cases on housing reside they federally address the they rely fee-shifting provi which either policy underlying sion, to be or consider whether the financial status assessed party Nor do address they considered in a reasonable award.4 fairly determining state an unbroken line creating this long-standing precedents are in the California followed courtrooms authority legal processes courts of a that denies access to those because way not to be applied financial status. litigant’s has and has abused her status as appear Amar Plaza to believe Green funds access courts. “No one has denied Green to the to obtain benefits in this matter: They filing fees.” used to obtain waivers of various motion apparently poverty She her to retain and has been able to obtain complain that Green was able one time counsel also appear failure to appeal. Finally, the Amar Plaza to assert Green’s counsel on below, case; however, access her as contingent counsel reflects merits of discussed obtain particular contingent whether counsel is available to in a courts is not based on

to our case. Cal.Rptr.3d Property Management Cal.App.4th Chee v. Amanda Goldt Assn., 116]; 40]; Cal.App.4th Mooring Parrott v. Townhomes Inc. Fairway Kaplan 158]. Homeowners Assn. Oaks Have the Right to Access the Courts

Californians To trace the origins of California’s commitment to access to for all justice Californians, income, without to we with the respect begin in right proceed Court, forma as Green did in pauperis, this case. In Supreme Martin Superior Court 135], 176 Cal. 289 P. held that have courts the inherent to allow authority on a parties, proper costs, showing, without of court fees and proceed payment despite absence of authorization to specific legislative do so. to the common Looking law, the court found the inherent to remit fees: “And power this one would since, to find naturally as was the expect ancient common-law imperfect system, measures, harsh as it was in of its many methods and it would strike one with to be surprise informed that credibly common-law courts of shut England their doors all suitors who upon poor could not until pay came to parliament their relief. Even would be the greater to the reproach system of of the state jurisprudence of California if it could be declared truly that in this statutes, twentieth century, by its codes and it had said same (Id. . . thing . .” 294.) p. this issue in Isrin v. Court

Our Superior Court returned to Supreme 63 Cal.2d 153 728], where the court faced the issue of whether a who plaintiff, otherwise for in forma qualified pauperis relief, could nonetheless be denied such relief because she was represented by counsel acting under a fee contingent contract. The court held that the right not proceed may circumstances, be denied under those because the part indigent should not be limited to from choosing only counsel who among Court, (Isrin v. Superior would agree subsidize supra, those costs. 165.) Moreover, a rule such relief would denying restrict improperly cases that would come to court. While cases in which or the lack liability, liability, rule, is would not be apparent affected such a those precisely cases where lies, it is not clear absent, or that merit is liability totally where the law often is Whether developed. those cases should be brought should not on the depend of court payment costs: “The natural consequence of the . . . rule is that the with an uncertain claim without may go and, counsel being layman, fail may to assert what he simply rights has. To the extent that has the effect practical restricting [the rule] indigent’s access to the courts because of his it contravenes the poverty, fundamental notions of equality fairness which since the earliest days common law have found in the expression right (See forma proceed pauperis. Martin v. Superior Court supra, 293-297.)” (Isrin 176 Cal. Court, Superior 63 Cal.2d at p. 165.)

These fundamental of fairness and access extend principles to issues other v. Estate pauperis. Baltayan Getemyan than the right in forma proceed 472 72],

(2001) the court considered Cal.App.4th Cal.Rptr.2d [110 the be in the whether should considered indigency plaintiff determining Code of undertaking amount Civil Procedure section required by which an an out-of-state where defendant undertaking requires plaintiff has shown the of a successful defense. Holding reasonable possibility the failure to consider the financial status of which resulted in the plaintiff, of dismissal of the case because his failure to the post undertaking, required discretion, the was an abuse of of case appellant’s “dismissal explained, in a It miscarriage resulted manifest of justice. effectively precluded appellant he is from his claims because litigating simply respondents (90 1435.) a at In reasonable of success.” proved possibility Cal.App.4th p. view, that be merit was showing may the court’s a a case without insufficient even in the a statutory to bar access on financial context of scheme grounds, the to California from of lawsuits without designed defendants costs protect demonstrable merit. Baltayan in traced the

Justice Johnson’s historical concurring opinion to in forma and the of antecedents of the right proceed rights pauperis, and after the to access California courts before Supreme Martin. of VII and Henry Court’s decision in Statutes Noting law, VIII noted that were into California Henry incorporated opinion costs, not waiver of fees and but also only those statutes for pretrial provided the costs for relief from automatic of of should payment opponent Getemyan, Estate (Baltayan supra, lose. indigent litigant Cal.App.4th of Johnson, J.).) a (cone. at 1437-1438 The of such opn. consequences pp. instead, (Id. loss, 1447.) left to the of the courts. at p. were discretion at should in the case hand: “In forgotten lesson drawn hot compelling costs, England both indigents security are entitled waiver for ruling its receiving are one economic costs party’s California interest saying his indigent party it win cannot be used to an deny should litigation words, access fundamental of access the courts. other right trumps Lallande omitted; (Id. v. comfort.” fn. see p. Alshafie on financial condition [hearing required 788] bond; concurring to determine if out-of-state must plaintiff post citing opinion Baltayan].) are costs litigation This court confirmed the recently guiding principle courts, nor deter access to the deny not intended to be used as tool to their at the cost of their rights ability provide from asserting persons v. Court 120 Cal.App.4th Superior the necessities of life. In Cruz 917], held was event of hearing we that a for in relief. The concerning forma evidentiary eligibility pauperis conflict was such limited resources insufficient litigant deny fact that had some “in a common law grounded right an entitlement right to proceed, person (Earls v. of due process. access to the courts and constitutional principles Court Cal.3d Superior 113-114 P.2d Court, 814].)” (Cruz 185.) Superior An similar to Amar Plaza assertion that consideration argument parties’ of financial status would lead to a failure to from discourage limited, merit, claims of or filing no was asserted on behalf of imposing referee fees on of discovery as means abuse of discouraging the discovery rules. The court that rejected assertion v. squarely Solorzano 603, (1993) Court Superior 18 616-617 Cal.Rptr.2d [22 401]. There, instead, trial were courts directed to consider whether of any allocation fees could be fair and reasonable under the circumstances.5 base,

At the Amar Plaza arguments founder on shoals of these parties’ cases, and the of access to principles justice. its discretion to exercising condition, consider financial the trial court declined to abandon these properly principles.6

The Statute the Fee to Be Requires Reasonable

The Amar Plaza asserted in the trial court that their fees were determined properly by determining number of hours of services legal that provided, number multiplying by reasonable rate. In hourly urging calculation, however, both analysis began ended with that they ascribed no to the meaning statute’s inclusion of the that the fee requirement is, be however, reasonable. That requirement meaningful.

As a matter of statutory we must interpretation, give to all of meaning the statute’s terms. We begin with the fundamental that principle “[t]he of objective construction statutory is to determine the intent of the enacting so that body the law may receive the that best effectuates that interpretation (Fitch intent. 812, (2005) v. Select Products Co. 36 Cal.4th [Citation.]” 818 that, We note because the Amar Plaza parties provide failed to concerning record ante), 2, summary judgment (see motion fn. we cannot determine the basis on which that granted. motion was example, For we do not know whether the court relied on the failure self-represented litigant facts, a separate file statement disputed material reached or the merits of the matter. We thus cannot determine that Green’s claims were without merit or complaint any in intervention was abusive in manner. 6 The fact self-represented Green was a majority proceedings in the case courts, represents growing trend in our which the Supreme urged Court has us to be cognizant of in conducting (See our business and developing our rules and procedures. Elkins v. Superior Court 483, 41 Cal.4th 1337 Cal.Rptr.3d [striking 163 P.3d [63 down 160] limiting rules the presentation of evidence family contrary law matters protections as for a litigant’s day court].) family litigants Just as law subjected “should not be to second-class (id. deprived justice” 1368), status or access to self-represented litigants should also be assured of the protection rights of their to access the present courts and their claims. intent, 591, 1233].) “we turn first To ascertain Cal.Rptr.3d [31 statute, and ordinary meaning. them their usual giving to the words of the (Nolan City 335, 340 Anaheim (2004) 33 Cal.4th [14 [Citations.]” 857, 350].) and clause should every P.3d The statute’s word Cal.Rptr.3d rendered or meaningless inopera effect that no or provision so given part 257, Court Ins. Co. v. Superior tive. (Manufacturers Life 10 Cal.4th Bd. Comp.Appeals DuBois Workers’ 220, 56]; P.2d 978].) P.2d Whenever 5 Cal.4th ” “ meaning.’ no should be rendered ‘useless deprived possible, part Tel. & Tel. Co. Law Students Assn. v. (Gay (1979) 24 Cal.3d Pacific P.2d terms, we must the statute to include all of its the Reading language “ ‘the We do so in the context of to the word reasonable. ascribe meaning harmonized and it a so that all may of which part whole law system ” (Landrum v. 1, 14 Court Superior (1981) 30 Cal.3d have effect. [Citations.]’ 325, 352].) 634 P.2d Cal.Rptr. [177 Drexler

In PLCM Inc. Group, 22 Cal.4th 1084 Cal.Rptr. [95 198, of determin 511], Court addressed the method 2d P.2d the Supreme 997 “ the ‘After the trial court has performed a fee as follows: reasonable ing so lodestar], the total award it shall consider whether the calculations [of a is more than of the case under all of the circumstances calculated and, so, the section if shall reduce amount [Civil Code] reasonable ” Drexler, Inc. v. (PLCM supra, Group, figure.’ that it is a reasonable award so v. Ash Corp. Sternwest 1095-1096, (1986) 183 at quoting Cal.4th pp. “ ‘after 74, is made 804].) That determination Cal.Rptr. Cal.App.3d [227 factors, its the nature of the litigation, including of a number of consideration involved, the skill in its handling, the skill the amount required difficulty, failure, circumstances or and other attention the success given, the employed, ” Drexler, (PLCM supra, Inc. v. Group, Cal.4th in the case.’ v. Robledo Melnyk 623-624 (1976) 64 Cal.App.3d quoting fees, PLCM involved of its lodestar the use contractual attorney’s While the Supreme approved fees was statutory expressly method in determining 1122, 1134—1136 Moses in Ketchum (2001) 24 Cal.4th Court case, fee the 735], mandatory involving In that 425.16, reviewed the the court section Civil Procedure of Code of provision been lodestar had which the use of the cases in fee statutory broad range endorsed to have the Legislature appeared that and concluded approved, limited in which expressly the limited instances except method generally, 425.16, its the court approved limitation in section no Finding the method. use; too, on the here used no restriction Legislature language indicating method of the fee other than it be reasonable.7 calculating fee, court, in

Green’s that the trial reasonable argument setting considered her financial condition as one of the circumstances of the properly case, relies on an award of fees should not recognized attorney’s cases financial relied unreasonable burden on Green impose losing party. Christensen, Miller, Fink, Jacobs, Glaser, below on Rosenman v. Weil & (Rosenman), Shapiro Cal.App.4th 903] fees should principle attorney’s not result “financial ruin.” That case, under the California Fair Act brought Housing Employment Code, (FEHA; Gov. et involved an award of fees to seq.) § FEHA, defendant. Under the the court has the discretion to prevailing Code, award (Gov. reasonable fees and costs to the prevailing party. Rosenman, (b).) subd. federal discrimina following § employment law, tion this court limited ato defendant to a case where recovery prevailing “frivolous, unreasonable, action was to avoid plaintiff’s groundless” with discouraging litigants meritorious claims from antidiscrimina enforcing (Rosenman, tion laws. 868-869.) Even in such a pp. case, however, the court consideration of financial status of the to the award: “The subject trial court should also make as to findings plaintiff’s ability and how the award should be pay attorney large in light financial situation. As the plaintiff’s Ninth Circuit Court of (9th held in Patton v. Appeals County 1988) Cir. 857 F.2d Kings of 1382, the trial court ‘should consider the financial resources of the in plaintiff the amount of determining fees to award to a defend prevailing ant.’ We with the wholeheartedly agree Ninth Circuit’s an award of holding ‘ ’ attorney fees “should not subject (Ibid.)” to financial ruin.” plaintiff (Rosenman, 42.) fn.

The Amar Plaza assert that the relevant Civil Code parties correctly cases, unlike the FEHA and civil provision, calls for the assessment of rights cases, fees on the whether or defendant. losing party Unlike FEHA plaintiff defendants need not show that the case to was frivolous recover here, cases, there is no incentive in the statute as there inis those to to assert their encourage The Amar Plaza are also plaintiffs rights. correct that those cases the established for authority consideration of provide the financial status of the in fees even where the case is losing setting plaintiff frivolous, determined to be a determination this court is unable to make in Nonetheless, this case. in the Civil Code that indicates a they point nothing determination that legislative should be for unsuc punished bringing cases, cessful when the threat of an award of fees untethered to any 425.16, contrast, by requiring Code of Civil Procedure section contains no such restriction only reasonable fees. the denial access. meaningful of would mean of ability consideration pay the fundamen find directive in the statute sufficient to overcome We no such indeed a right to our courts: “Access to courts is tal of access rights It is regarded all the federal and state Constitutions. by guaranteed persons Amendment for right government as from the First arising petition I, [citations], 3 of also article section right by redress of grievances protected Const., I, (See art. right Constitution. also Cal. § the California [inviolate contexts, cases, be cited for the trial].) may in a of variety Numerous jury and, indeed, to of this to our of right system government obvious importance Muir Medical (Jersey v. John fabric of our very society. [Citations.]” Center 97 Cal.App.4th of our cases demonstrates the strength

To the the arc of our contrary, not bar access for nor litigants, that financial disabilities should commitment in remedies. For example, them from available seeking unduly discourage 354], the In re Norton (1988) 206 Marriage Cal.App.3d of a frivolous claim fees as a sanction for bringing trial court awarded action, which The court affirmed the trial court’s in a marital proceeding. sanctioned: being the financial status party took into consideration is in the nature of fees in this action attorney “Even the award though sanction, financial burden upon an unreasonable the court should not impose (Id. 59.) at p. the sanctioned party.” too, Procedure section provides contexts. Code of Civil

So in other settlement encourage certain costs and fees order shifting definition, must, economic effectively, impose To do so litigation. in light fails to evaluate its case appropriately on a which consequences however, situation, the trial Even in that settlement offer. meaningful the unsuccessful party the economic circumstances of must consider Civil Procedure section “If the of Code of goal the award because determining not settlements settlements—and fair and reasonable encourage is to the incentives must ensure their discretion exercising cost—trial courts any affluent parties Otherwise less between the two parties. to settle are balanced the risk of offers to avoid just unreasonable into accepting will be pressured Thus, possess when two competing parties can’t afford. they financial penalty resources, the trial courts may require this economic vastly disparate awards) the section cost (in this instance the financial incentives ‘scale’ (Seever Press, Inc. v. Copley resources.” the respective parties’ 1561-1562 Cal.App.4th awarded to prevailing of fees to be the amount determining

In reasonable, here, the trial statute, fee be as requires where party in the case in perform circumstances consider the other must therefore include, as circumstances will appropri Those other the lodestar analysis. ing ate, impact of the losing party circumstances the financial Here, award on that the trial court did consider those financial party. circumstances, did all of the other circumstances clearly but not consider result, to determine whether the amount of fees. As we are unable setting the court exercised its discretion to balance all of the relevant factors against other, each the determination that the amount to be assessed was whether zero was the result of such a balance. Because a trial court’s failure to (In re Gray exercise Marriage discretion is “itself abuse of discretion” 87]), we will remand for the court to do so. discretion, court, that the trial heard the matter exercising having

and reviewed Green’s as to the effect of a fee award on her showing ability life, on with the no carry determine that requirements daily may properly allocation of fees can be made within the fair exercise of its That authority. case, here, will not be the result in not be the case not every may may But, case, often be the case. in the the trial court does have the proper discretion to determine that the that award is reasonable is zero.

Moreover, able, time, the fact that a was for a short to be litigant period counsel before represented by she was to become self-represented, cannot be asserted as the basis to denial of her access to the courts justify a fee making award she is unable to without financial ruin. It cannot pay state, burdens, law of this in this that additional financial century, burdens beyond to bear in the face of demonstrated capacity are extra indigency, placed deterrence to those provide against 1917; their pursuing rights our courts. That has not been since at so least Court; is not consistent with our Rules of did not it. Legislature require Nor will we.

DISPOSITION The award of fees is reversed and the matter is remanded for further consistent with this Each is to bear own proceedings opinion. its costs on appeal.

Woods, J.,P. concurred. Acting Acting WOODS, J.,P. Concurring. concur in the judgment. I respectfully It to this concurring justice whether one appears majority adopts dissent, articulated view in the or the view majority by opinion expressed the ultimate destination is the same. A reversal is I point required. explain with more hereafter. specificity the trial court exercised

The core issue in this is whether appeal properly on the merits was to receive its discretion in ruling prevailing party fees, refusing a which is tantamount to ruling “zero” dollars in attorneys’ fees, determination was in That my apparently award any attorneys’ opinion. an in currently made on the basis was respondent propria persona at the time the unable award of any attorneys’ financially pay award was determined. 1354, observes, however, (c) subdivision Civil Code section

As dissent in that the has Legislature at with that loggerheads ruling be appears I fees shall be made. attorneys’ an award of provided upon prevailing, in a that the use of the word shall with the dissent in agree maintaining our by high a as stated mandatory statute indicates generally application (2007) 42 Cal.4th v. Allen People 557]. however, the trial court does that the record made by

The majority, opines the court a definitive answer of whether or not properly not lend itself to because, discretion in award making apparently, exercised its required was the financial condition factor considered the trial court only by factors, time says majority, the award was made. Other at respondent commonly and settled litigated concept include of the well should application method, other factors for consideration of called the lode star but adjusted that financial in a case. I agree on the facts particular depending presented the trial court in factor to be considered by condition is one such other fees. an award of considering attorneys’ erred in arriving that the trial court

It clear to this concurring justice is fees, refusing which is tantamount to determination in fixing attorneys’ zero be reversed and The matter should award attorneys’ my opinion. fees as is attorneys’ reconsider awarding to the trial court for it to remanded (c) and in its exercising subdivision Civil Code section by mandated utilizing what factors the amount to make manifest discretion as to the award. making with the separate some discomfort

I write to express also separately Getemyan v. Estate Baltayan Johnson in of Justice concurring opinion which the on Cal.Rptr.2d 72] 90 Cal.App.4th in a Johnson opined extensive reliance. Justice in this case majority places defendant cannot manner that an out-of-state scholarly the State of law suit in defending before accessing a bond post are Baltayan clearly distinguish- the facts in I note that California. Initially, case, value of raising question precedential able from the instant Second, concurring sums his Justice Johnson up this case. Baltayan (Id. words, comfort.” access trumps “In other stating opinion Johnson, J.).) (cone. opn.

479 to be illuminated sought by In and lofty appealing principle spite Johnson, are to this unsettling concurring justice. By Justice the words I do not must in favor of access. justice always scales implication, tip comes to mind immediately find that to be the case. One always example statute, the vexatious litigant to vexatious litigants. applying pertaining instances, curtailed, in some by access to the courts is and indeed precluded an offending court ordered to access the courts requiring prior permission Proc., of Justice (Code Civ. et I find the bright-line concept 391 party. seq.) § be of be noble and minded but too broad to Johnson’s concurrence to high in all cases. utility

I concur in the for the reasons stated. respectfully judgment JACKSON, J., While I and concur in the Concurring Dissenting. majori reversed, fees award must be I ty’s holding attorney’s respectfully view, dissent as to the rationale. In the trial court abused its discretion in my awarding no fees based on Green’s and it should attorney’s solely indigency, not consider Green’s indigency its award. making 1354, (c) (section 1354(c)),

Civil Code section subdivision provides documents, an action to enforce the shall governing prevailing party “[i]n be awarded reasonable fees and It costs.” is this statute which our review of the trial governs court’s award of no fees. statutes, In the construction of our is to ascertain primary goal give Proc., 1859; v. (Code effect to the intent of the Legislature. Troppman Civ. § Valverde 1121, 306, (2007) 328].) 40 Cal.4th 1135 P.3d Cal.Rptr.3d [57 Our role “is to ascertain and declare what is in terms or in substance simply therein, omitted, contained not to insert what has been or to omit what has inserted; been there where are several such a provisions particulars, is, (Code construction if to be possible, as will effect to all.” Civ. adopted give Proc., 1858; see Fed. & Loan Savings City Assn. v. Los Angeles § California 342, 279, (1995) 11 Cal.4th 297].) P.2d Cal.Rptr.2d [45 statute;

We look first to the language if clear and we unambiguous, Co., meaning. (Prachasaisoradej v. will effect to its Ralphs Grocery give plain Inc. 407, (2007) 133].) Cal.4th 165 P.3d When Cal.Rptr.3d statute, themselves, turn construing we first to the words their giving them usual, ordinary meanings. (People Casualty v. Co. Allegheny 41 Cal.4th 198].) 708-709 If each word and possible, Mays should be given significance. (People phrase context, words used “must construed in harmonized, other, and statutes must be both and with each to the internally (California Assn. Public Utilities Com. extent possible.” Mfrs. 836, 676, accord, v. 836]; Troppman Cal.3d P.2d 598 [157 Valverde, 1135, 10.) supra, 40 Cal.4th at fn. p. 1354(c) and It of section is clear language unambiguous. provides and

“the shall be awarded reasonable fees costs.” attorney’s prevailing Allen mean “mandatory.” (People “Shall” is construed to generally 124, Thus, 557].) the Cal.4th only in 1354(c) of section which effect to each word the interpretation gives the the an award section is that section entitles to prevailing party reasonable fees and costs. attorney’s that,

As the the Court has stated in determin- majority recognizes, Supreme (a), reasonable fees under Civil Code section subdivision ing attorney’s ‘lodestar,’ i.e., the court the the number of hours with “ordinarily begins rate. ‘California hourly the reasonable reasonably expended multiplied by a case and courts have held that a of time on consistently computation spent an the of that time is fundamental to a determination of reasonable value ” (PLCM Inc. Drexler Group, fee award.’ attorneys’ appropriate P.2d The court then may Cal.4th it, the based factors to the case before figure lodestar adjust upon specific “ involved, ‘the nature of the its the amount the difficulty, including litigation, the attention given, skill in its the skill handling, employed, ” (Id. failure, at success and other circumstances case.’ the calculation 1095-1096.) in the Court’s as to Nothing pp. Supreme opinion award, itself, 1354(c) or in section suggests of a reasonable fees attorney’s on the fees be denied based attorney’s essentially solely award of may the losing or that the court is even to consider indigence, losing party’s indigence. party’s inherent indigent to may authority permit parties

While the courts have mean the of court this does not to their cases without litigate payment their cases litigate inherent authority indigent parties courts have permit and costs to the authorized fees statutorily without payment fees to It for the court to collection of its forgo is one thing opposing party. It another to force their cases. litigate quite parties allow be entitled and to which would otherwise they fees costs forgo attorney’s if the them. against Certainly, to enable pursue litigation being would insist litigation, they upon indigent parties prevailed Basic fairness fees and costs as the parties. awarded attorney’s prevailing recover their be able to demands opposing parties do not this court cited majority as well. Previous decisions by costs conclusion. contrary compel Getemyan v. Estate Baltayan a waiver of the undertaking required involved a request

Cal.Rptr.2d 72] noted that under certain conditions. We an out-of-state plaintiff “[w]here to waive the posting a trial court has discretion indigency, establishes plaintiff (Baltayan, 1030.” under Code of Civil Procedure section of security had been in forma 1433.) granted pauperis in that case Since p. plaintiff status, arbitrarily that “the trial court acted capriciously we held (Id. the undertaking.” vacate or reduce the amount of either refusing 1435.) Thereafter, resulted in noted that “dismissal of case plaintiff’s] we [the from litigating of It miscarriage effectively manifest justice. precluded [him] a reason- because he is and indigent proved his claims simply [defendants] Getemyan, v. Estate (Baltayan able of success.” possibility of 1435.) at Cal.App.4th p.

Baltayan that an who does not support proposition plaintiff, case, was access to the courts but lost the is from granted exempt paying entitled, where including, to which the defendant is damages applicable, In his Justice Johnson noted fees costs. attorney’s concurring opinion, that there is no basis for an out-of-state treating indigent plaintiff differently “ a the likelihood of a than resident ‘In either instance indigent plaintiff: nil, defendant his is because the in each collecting costs prevailing plaintiff ” Estate (Baltayan Getemyan, supra, circumstance is a pauper.’ Johnson, (cone. J.).) at defendant still opn. Cal.App.4th p. entitled to his costs and he be attorney’s just may fees upon prevailing, unable to collect them. The court an out-of-state merely exempts from them front as in order to his case. plaintiff security litigate paying up Miller, Jacobs, Glaser, Christensen, Fink, Rosenman v. Weil & Shapiro a discretionary involved Cal.App.4th 903] Fair award of fees awarded under the California attorney’s Employment Code, that, in (Gov. making Act et We noted Housing seq.). § award, . . to the findings ability trial court should . make as plaintiff’s “[t]he of the light and how the award should be attorney large pay 42.) (91 financial fn. We ex- situation.” plaintiff’s p. ‘ concern that “an award of “should not attorney subject pressed ’ ” (Ibid.) discretion- to financial ruin.” Because fees were attorney’s plaintiff Rosenman, a conclusion that a the decision does not ary support plaintiff’s an award of fees where such an award is attorney’s indigence precludes statute. mandated

Patton County Kings 1988) F.2d involved (9th similarly Cir. a case. The court rights agreed a fees award in civil discretionary attorney’s financial resources the trial court should consider plaintiff’s “ added, however, ‘a court should not fees. It district awarding attorney’s refuse to award fees to a defendant . . . on the attorney’s prevailing solely ” (Id. 1382.) of the financial situation.’ That is ground plaintiff’s exactly what occurred here.

If the had intended that an award of fees and costs Legislature attorney’s 1354(c) under section in order to contingent ability upon party’s pay courts, ensure access to the had the to be the certainly ability this specify (a), case in the statute. For Code section Family subdivision example, “(1) In a for dissolution of . . . and in proceeding marriage any provides: related the court shall ensure proceeding subsequent entry judgment, that each has access to each party legal representation preserve party’s assessments, if based on the income and needs rights by ordering, necessary one to the other or to the party, except governmental entity, party, pay other whatever amount is attorney, reasonably necessary party’s fees and for the cost of maintaining defending during proceeding [j[] (2) one be ordered to Whether shall pendency proceeding. pay fees and costs for another and what amount shall be party, paid, (A) shall be determined based incomes and needs upon, respective (B) to A factors abilities parties, any affecting parties’ respective pay. who lacks the financial to hire an as an in attorney may party ability request, that the court order the other if that other has the litigant, pro per party, party financial a reasonable amount to allow the ability, party pay unrepresented to retain an in a manner before in the matter attorney timely proceedings go 1354(c) forward.” That the did not use similar section Legislature language it intended the award of fees and costs to be suggests attorney’s did intend to from it not mandatory, exempt plaintiffs such an award. paying

I with the that an award of fees in disagree attorney’s majority’s position for this case would constitute the denial of access to the courts punishment an lawsuit. Plaintiff was not denied access to the court: unsuccessful bringing file and her She was not litigation. she was permitted pursue punished lawsuit; not a an unsuccessful the award of fees was bringing attorney’s In re Marriage (e.g., sanction at the discretion of the trial court imposed Norton 354]). She was Cal.App.3d simply an unsuccessful lawsuit. fees as cost pay attorney’s bringing in a suit This is no different that requiring losing party upon requirement such fees. a contract containing attorney’s provision pay fees and costs reasonable losing attorney’s Requiring pay is not a denial of access to the courts. Indigent litigants to statute pursuant waivers, of fee not to file their cases only have access to the courts by way matters, I believe fee waivers for fees. do not including jury but also for other fees and costs will award of reasonable that enforcing mandatory Moreover, not I do litigants. effect on litigation by have a chilling which into litigation a defendant who prevails right believe penalize what the recovering him from thrust involuntarily by preventing he has been determined to award. just has Legislature arbitrarily relevant factors but to consider the Since the trial court failed on Green’s solely fees and costs based Amar Plaza no attorney’s awarded (Ohton v. be an abuse of discretion. I would hold the award to indigence, University Trustees State (2007) 148 Board of of California and direct the trial 111].) I therefore reverse would costs, after considering fees and Amar Plaza reasonable to award set Green’s indigency—as do not include factors—which appropriate Drexler, Inc. 22 Cal.4th at 1095-1096. forth in PLCM Group, pages

Case Details

Case Name: Garcia v. Santana

Court Name: California Court of Appeal

Date Published: May 28, 2009

Citation: 94 Cal. Rptr. 3d 299

Docket Number: B206513

Court Abbreviation: Cal. Ct. App.