The Man Wins, the Attorney Doesn't Lose, the Client Loses ...

Settle v. State of California, No. B249236 (D2d6 July 23, 2014)

Code of Civil Procedure § 1038 requires an award of costs (including attorneys’ fees) to a government entity defendant in that wins summary judgment if the court finds that plaintiff lacked a reasonable basis to bring suit. In this case, after granting the state’s summary judgment motion, the trial court assessed about $11,500 in costs and fees against both plaintiff and her attorney, jointly and severally. Section 1038, however, is silent about whether costs can be assessed against an attorney. Given the statute’s complete absence of any reference to attorneys, and in light of the other statutory remedies available to punish attorney participation in frivolous litigation—such as sanctions under § 128.7—the court here (employing some funny metaphors) finds that § 1038 does not authorize awards against attorneys.

Reversed.