California Appellate Court Rules Attorney May Not Be Assessed Costs in Frivolous Suit
A California appellate court recently held that state law does not allow a court to tax costs against a plaintiff's attorney, even when the court finds that the suit lacked reasonable cause and was not brought in good faith.
The dispute arose in a lawsuit filed by Kathryn Settle against the State of California and the city of Morro Bay after a sand escarpment on the beach collapsed causing Settle to fall into the water and rocks. Settle hired attorney James McKiernan to represent her.
Shortly after McKiernan filed the suit, the State warned him that they would seek costs and sanctions against him if he did not dismiss the State as a defendant. The State advised McKiernan that it did not own the beach and thus the suit against it was unwarranted. McKiernan did not heed the state's warning.
During discovery, the city of Morro Bay admitted to owning the beach, but argued it was immune from suit because the accident was caused by natural conditions on unimproved public property. Both the State and City moved for summary judgment.
Finding that no "reasonable plaintiff would have maintained this action against the City and the State," the court quickly granted summary judgment and dismissed the complaint. The defendants moved for imposition of defense costs against McKiernan, relying on Cal. Code of Civ. P. 1038. That section authorizes the award of defense costs when the court finds a suit was not brought in good faith.
The judge ordered Settle and McKiernan to pay over $11,000 in attorney's fees and costs.
McKiernan personally appealed, arguing that Section 1038 is silent on the issue of imposing costs on counsel, as opposed to plaintiff herself.
Finding that there was no published case holding that Section 1038 defense costs may be imposed on counsel, and that they would not read into a statute language the Legislature chose not to put there, the appellate court for the second district reversed the award of costs against McKiernan.
"We, like the server who cannot add or substitute entries on the menu, cannot add or substitute words in a statute," wrote the court. Costs "may not be imposed simply because counsel urged an incorrect position on behalf of his client."
The appellate court reversed the award of costs against McKiernan and granted his request for costs on appeal. See: Settle v. State of California, 228 Cal.App.4th 215 (2014).
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Related legal case
Settle v. State of California
|Cite||228 Cal.App.4th 215 (2014)|
|Level||State Court of Appeals|