Settle v. State of California

Filed 7/23/14 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

KATHRYN SETTLE, 2d Civil No. B249236 (Super. Ct. No. CV120119) Plaintiff, (San Luis Obispo County) v. STATE OF CALIFORNIA, Defendant and Respondent; JAMES McKIERNAN, Objector and Appellant.

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. Code of Civil Procedure 1038 requires a mandatory award of defense costs where the trial court grants summary judgment and finds that plaintiff lacked reasonable cause and good faith in filing or maintaining a tort action against a public entity. (Kobzoff v. Los Angeles County Harbor/UCLA Medical Center (1998) 19 Cal.4th 851, 1 853.) Defense costs include reasonable attorney's fees. (§ 1038, subd. (b).) Here, the trial court ordered plaintiff and her attorney, James McKiernan, to pay $11,457.65 attorney's fees and costs pursuant to section 1038. McKiernan solely appeals. We reverse because section 1038 does not authorize defense costs against counsel.

1 All statutory references are to the Code of Civil Procedure unless otherwise stated.

Facts and Procedural History In 2012 plaintiff sued the State of California (State) and City of Morro Bay (City) for dangerous condition of public property after a sand escarpment on the beach collapsed, causing her to fall into the water and rocks. State did not own, control, or maintain the beach. This was confirmed in discovery when City admitted that it owned and maintained the property. State warned plaintiff's attorney, James McKiernan, that it would seek sanctions pursuant to section 1038 if the complaint was not dismissed. The warning went unheeded. State and City moved for and were granted summary judgment on the ground that the action was barred by a statutory immunity for injuries caused by a natural condition on unimproved public property such as a beach. (Gov. Code, §§ 831.2; 831.21.) The trial court found: "Plaintiff was notified of the applicability of the immunities afforded to the City and the State pursuant to Gov. Code sections 831.2 and 831.21 but proceeded with the action without any evidence to overcome the immunities. No reasonable plaintiff would have maintained this action against the City and the State." Section 1038 McKiernan argues that section 1038 does not authorize the imposition of defense costs against counsel. State admits that section 1038 is silent on whether defense costs may be imposed on counsel. The issue is one of statutory construction and subject to de novo review on appeal. (Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169, 1175.) Section 1038 provides for mandatory defense costs where the trial court determines that "a plaintiff , petitioner, cross-complainant, or intervenor" did not bring "the proceeding with reasonable cause and in the good faith belief that there was a justiciable controversy under the facts and law which warranted the filing of the complaint . . . ." The words "counsel," "counsel for plaintiff" or "plaintiff's attorney" are not in the statute. The Latin phrase "expressio unius est exclusio alterius" comes to mind. This is a "canon of construction holding that to express or include one thing implies the exclusion of the other, or of the alternative." (Black's Law Dict. (8th ed. 2004, p. 620, col. 2; see also Wildlife Alive v. Chickering (1976) 18 Cal.3d 190, 195.)