A published appellate opinion last week followed successful arguments by Best Best & Krieger attorneys that an approximate $105,000 award of attorneys’ fees and costs under Code of Civil Procedure section 1038 applies to a plaintiff who continued to maintain his action for well over a year — even after learning conclusively that the city was not responsible for damaging him in any way. BB&K attorneys Kira L. Klatchko and Irene S. Zurko represented the City of Corona before the 4th District Court of Appeal (Suarez v. City of Corona (D065949)) and Ross Trindle obtained the summary judgment and award in the trial court.
Daniel Suarez was injured in 2008 when he was a passenger in a van whose compressed natural gas tank exploded while being fueled at a City-owned fueling station. Suarez sued the City and others. An investigation by Corona Fire Department and the Southern California Gas Company showed that the explosion was caused by a rupturing of the tank in the van, and not because of any leaks or problems at the fueling station. Suarez continued to pursue the litigation and, following a successful motion for summary judgment in favor of the City, the trial court awarded the City its fees and costs incurred since discovery was completed two years prior.
The initial award was made against both Suarez and his attorneys, who the City maintained were largely responsible for directing the litigation. On appeal, however, the Fourth District held that, under section 1038, an award may only be made against a plaintiff, and not against counsel.
This case follows the recently issued Settle v. State of California (2014) 228 Cal.App.4th 215, which concluded that the statutory language of section 1038 does not specifically permit an award of fees and costs against counsel for a plaintiff. Both Suarez and Settle invite the Legislature to weigh-in and alter the language of section 1038, if the statute, meant as an alternative to a malicious prosecution action, was intended to punish both attorneys and plaintiffs responsible for bringing frivolous litigation against municipalities.
