The URL can be used to link to this page

Home My WebLink About13 AMICUS BRIEF 05-18-98 LAW OFFICES OF WOODRUFF~ SPRADLIN & SMAR A PROFESSIONAL CORPORATION AGENDA MEMORANDUM NO. 13 5-18-98 TO: FROM: DATE: RE: Honorable Mayor and Members of the City Council City of Tustin City Attorney May 13, 1998 No Cost Joinder in Amicus Brief in Kobzoff vs. HarbodUCLA Medical Center, Supreme Court Case No. SO66874 RECOMMENDATION: Approve joinder in an amicus brief on the side of the public agency in Kobzoff vs. HarbodUCLA Medical Center,, Supreme Court Case No. SO66874, at no cost to City. DISCUSSION: The City has the opportunity to join in an amicus brief that will be prePared at no cost to the City in a case of great importance to the City. In Kobzoff vs. Harbor/UCLA Medical Center, Supreme Court Case No. SO66874, the Second District Court of Appeal spoke disapprovingly of the remedy provided by Code of Civil Procedure Section 1038. This remedy permits a party to recover its attorneys fees and costs if the plaintiff or a cross-complainant, continues to pursue a case even though there is no reasonable cause for doing so. The threat of Section 1038 sanctions is used by the City Attorney's office and by the City's Claim's Administrators to discourage claimants from pursuing claims when, for example, the accident occurred outside the City's jurisdiction or where the claim involves an area of the law where the City has absolute tort immunity. In some cases where the claimant has persisted in bringing a meritless claim, the City has been successful in moving for summary judgment and obtaining a judgment for its fees and costs under Section 1038. The Court of Appeal decision at issue before the California Supreme Court required the defendant to show that the plaintiff had a "malicious intent" in bringing the action. This burden has not been required in seeking fees and costs under Section 1038. For example, the plaintiff's attorneys may have no case as a matter of law, but may decide to keep the City in the case not for malicious reasons but simply for strategic purposes. We do not think that plaintiffs should be able to force the City to expend costs for a defense even if such plaintiffs do not have malicious motives. 1100-12 62810_1 Honorable Mayor and Members of the City Council City of Tustin May 13, 1998 Page 2 The amicus brief is being prepared by the law firm of Richards, Watson & Gershon at no cost to the cities that choose to join in the brief. LOIS E. JEFFRF~ Enclosure cc: William A. Huston, City Manager 1100-12 62810_1 GLENN R, WATSON ROBERT G. BEVERLY HARRY [- GER~HON DOUGLAS W. ARGUE MARK / I. AMKEN ERWIN E. ADLER DAROLD D. PIEPER ALLEN E. RENNET~ BT~-VEN L WILLIAM ~._ ANTHONY B. DREWRY MITCHEII E. TIMOTHY t_ NEuFELD MICHAEL G CO~ONO S. 'III.DEN KlM C. EDWARD DILKE$ PETER M. THORSON BRENDA 1- D~EDERICHB JAMES L. MARKMAN DEBOI=~J'~ I~ HAKMAN RUBIN D. WEINER BTI~KIA T. A.~AMUI~ KAYBER O. BUME SAUL JAFFE GREGORY W. STEPANICICH ClAVID ROEERT DANIEt.~ ROCHEU.~ BROWNE BENJAMIN I~ARNOL.,IVV MICHAEL JENKINS WILL]A~ P. CURI_EY III Wl~ B. RUDELL Cl. CRAIG FOX QUINN M. ~ARROW BOYD I_ HILL ~OL W. LYNCH LYNN I. JEFFR~ ~ ~BIN J~ E. COLESON GREGO~ M, ~NE~ ~RENCE R. ~O~ M. JIM~ O~IEL ~ PINES MICHE~ B~ ~GNERIS USA ~ND AM~DA F, SU~KIND D~E ~KOW GRO~ ROBE~ C. CECCON ~Y ~ C~RKE SAYRE W~VER ~NNE ~ MONTGOME~ ST~EN H. ~UFM~N ROBE~ ~ ~LBUENA GA~ E.CANS ERI~ M. FLEMING JOHNJ,HARRI~ K~IN G. ENNIS ~Y W. CHING ROBIN O. H~RIS PA~IC~ ~ OUVER MICHAEL EST~DA KE~ ~ ~GON ~URENCE ~. WIENER SAND~ L WI~AMS STUN R. ORR ~CY COLONS KES ,CHARDS, WATSON & GERSI- ATFORNEYS AT LAW A PROFESSIONAL CORPORATION THIRTY-EIGHTH FLOOR ~ SOUTH HOPE STREET LOS ANGELES. CALIFORNIA 90071-1469 (213) 626-8484 FACSIMILE (213) 626-0078 RICHARD RICHARDS (1916-1988) BAN FRANCISCO OFFICE ,50 CAUFORNIA STREET SUITE 15OO SAN FRANCISCO, CALIFORNIA 94111-4612 (415) 421-8484 FACSIMILE (415') 421-8-486 ORANGE COUN':T'Y OFFICE NliMBER ONE CNIC CE~ER CIRC~ BR~ CAUFORN~ 92821 TO: ALL CALIFORNIA CITY ATTORNEYS RE: AMICUS BRIEF IN KOBZOFF V. HARBOR/UCLA MEDICAL CENTER (1997) 59 CAL.APP.4TH ADV. 219 (DEPUBLISHED BY GRA~NT OF REVIEW BY THE CALIFORNIA SUPREME COURT) SUPREME COURT CASE NO. S066874 (REVIEW GRANTED FEBRUA~RY 18, 1998) ISSUE: REVIEW OF COURT OF APPEAL DECISION IN ORDER TO CLARIFY THE LEGISLATIVE INTENT OF CODE OF CIVIL PROCEDURE SECTION 1038 AND TO PROVIDE UNIFORMITY OF DECISION We request your City's Amicus assistance regarding the Supreme Court's review of the above-referenced Court of Appeal opinion, which interprets Code of Civil Procedure Section 1038 in such a way as to increase the burden of public entities that seek attorneys' fees from plaintiffs who bring frivolous lawsuits. BRIEF DESCRIPTION OF CASE Plaintiffs sued the County for the death of plaintiffs' decedent, a suicidal mental patient who escaped from the hospital during a 72-hour hold and committed suicide. The County repeatedly warned plaintiffs that it was immune from liability for the death of an escaped mental patient under Government Code Section 856.2. Plaintiffs persisted in their lawsuit. The County obtained summary judgment. It also obtained attorneys' fees from plaintiffs 'and their attorney under Code of Civil Procedure Section 1038. Section 1038 requires a court to impose attorneys' fees if it finds that plaintiff did not file or pursue RICHARDS, WATSON & GER¢ I Ail California Cl~y Attorneys April 27, 1998 Page 2 a case with reasonable cause and subjective good faith. The court awarded Section 1038 fees on the grounds that the case was not filed or pursued with reasonable cause; it made no finding on plaintiffs' subjective bad faith. The Second District Court of Appeal, Fifth Division, reversed and remanded. In a published decision (1997) 59 Cal.App.4th Adv. 219, l~u_~bli_~sh~d by Grant_ of Review by the California Supreme~'C~u~t,~ t/~e~oY/~held Ghat a trial--4rOurt may not impose Section 1038 attorneys' fees upon a plaintiff unless it finds that plaintiff brought or maintained the case, not only without objective reasonable cause, but also with subjective bad faith amounting to "malice." The Second District disagreed with other districts, which hold that a lack of reasonable cause alone is sufficient to justify Section 1038 sanctions, regardless of the plaintiff's subjective intent. (E.g. Knight v. City of Capitola (6th District 1992) 4 Cal.App.4th 918, 831-932.) The Second District also held that the Section 1038 remedy is "disfavored." One justice wrote a concurring opinion, opining that "malice" should not be the standard for the subjective intent showing, and that Section 1038 should not be considered a "disfavored" remedy. WHY THIS CASE MERITS CITY ATTENTION The Second District's interpretation of Section 1038 will severely hamper use of the statute to discourage and punish frivolous lawsuits against cities and other public entities. It will be difficult, and often impossible, to prove a plaintiff's subjective belief that he or she had no case. Furthermore, nothing in the statute justifies a "malice" test for subjective bad faith, or justifies classifying Section 1038's remedy as "disfavored." Attorneys representing public entities often warn plaintiffs to drop frivolous cases or risk Section 1038 sanctions. Under pre-Kobzoff law, this proved an effective preemptive strike against plaintiffs who doubted their cases. Under Kobzoff, however, plaintiffs' attorneys may continue their cases, confident that it will be virtually impossible for the public entity to prove "malice." The schism between the Second District Court of Appeal and all other courts of appeal that have ruled on this issue, as well as the court's internal schism on the "malice" and "disfavored" remedy holdings, renders this case ideal for a decision from the California Supreme Court. An Amicus brief from California cities will substantially bolster the chance for a favorable Supreme Court opinion which will have wide-reaching significance for all California cities. RICHARDS, WATSON & GERSH¢ Ail California City Attorneys April 27, 1998 Page 3 ISSUES ON WHICH AMICUS ASSISTANCE WOULD BE HELPFUL Our proposed issues for review are as follows: 1. Whether a trial court must find both a lack of reasonable cause and subjective bad faith to impose Code of Civil Procedure Section 1038 attorneys' fees upon a plaintiff. tO "malice" Whether the bad faith that must be shown amounts 3. Whether Section 1038.attorneys' fees are a "disfavored" remedy. WHY THESE ISSUES ARE OF MAJOR SIGNIFICANCE,~O CITIES The Kobzoff decision, if allowed to stand, will cripple cities' use of Section 1038 sanctions as both a deterrent to frivolous lawsuits and a method of obtaining recompense after defeating frivolous actions on summary judgment or nonsuit. Under the Kobzoff standard, a city cannot obtain attorneys' fees from a plaintiff who brings a frivolous lawsuit that no reasonable attorney would think tenable, so long as the plaintiff subjectively thought that the case might succeed. The city must prove the plaintiff's subjective intent despite its inability to conduct discovery on the plaintiff's intent, or prove it in a jury trial. Section 1038 sanctions can only be awarded by the court on motion. THE CITIES' COMMON INTEREST IN SUPREME COURT REVIEW The Kobzoff decision's impairment of Section 1038 affects all cities uniformly. All cities have a common interest in the decision's reversal. WHAT AMICUS SUPPORT CAN ADD An Amicus brief from the cities will bring home to the court the widespread effect this decision has upon California cities' ability to discourage and obtain reimbursement for frivolous lawsuits. Therefore, while Mr. Fisher's brief presents an effective argument for reversal of the Kobzoff decision, the cities' Amicus support will bring home to the court the importance of reversal. ANTICIPATED FILING SCHEDULE As you may know, Girard Fisher of Pollak, Vida & Fisher is representing defendant, the County of Los Angeles, in this case. Mr. Fisher filed his opening brief on April 17, 1998. He RICHARDS. WATSON& GERSHON Ail California r Attorneys April 27, 1998 Page 4 anticipates that plaintiffs will rely on their appellate court brief, thereby causing the Amicus brief to be due on June 4, 1998. We therefore request that cities wishing to join in the .Amicus return their authorizations in the enclosed self- addressed, stamped envelope by May 11. City Attorneys, please specify if you would like your name on the brief and if so, please list your State Bar numbers. CONCLUSION We think this is a matter of widespread interest to all cities, and that Amicus assistance from cities will be of great help in obtaining reversal of this poorly reasoned case. Please join with the League of California Cities, the California State Association of Counties, the CJPIA, 14 California.cities and us in supporting Los Angeles County. If you need any further information, please do not hesitate to contact us. We look forward to receiving your support. Very truly yours, Anthony B. Drewry ABD:sas Enclosure 0446358