Plaintiff’s Case Was Brought and Prosecuted Without Reasonable Cause, But Remanded So Discretion Could Be Exercised.
Above: The Federal Theatre presents "I want a policeman" by Rufus King & Milton Lazarus. Fastest moving comedy of the season : First time in San Diego. Federal Arts Project. 1936-41. Library of Congress.
Code of Civil Procedure section 1021.7 is a special fee-shifting statute that allows a court, in its discretion, to award reasonable attorney’s fees to the defense if an action brought against a peace officer/public entity employing a police officer–arising out of the performance of a peace officer’s duties–is found to have been not filed or maintained in good faith and with reasonable cause.
After the appellate court directed the dismissal of plaintiff’s remaining claims as time-barred, City requested 1021.7 fees, but the lower court did not grant them.
That prompted another appeal, with City convincing the appellate court that the action was brought/prosecuted without reasonable cause such that the matter had to be remanded for a true exercise of discretion in McMillin v. City of Foster City, Case No. A132043 (1st Dist., Div. 1 Apr. 25, 2012) (unpublished).
Although finding that section 1021.7 “has received little judicial attention,” the appellate court found persuasive cases construing similar language in CCP § 1038–permiting a Torts Claim Act defendant to recover fees if the action was not brought “with reasonable cause and in the good faith belief that there was a justifiable controversy under the facts and law which warranted the filing of the complaint.” Both sections are intended to serve as a substitute for malicious prosecution suits by governmental entities, which have been held to be prohibited by the state Constitution from so suing.
Here, finding either element as lacking sufficed with respect to City’s burden of proof under section 1021.7. The appellate court found plaintiff’s action to be frivolous because (1) negligent police investigations are protected by the Government Code section 821.6 immunity; (2) no lack of probable cause underlying an arrest occurred due to no arrest and there were facts to support probable cause for an arrest anyway; (3) plaintiff’s nolo plea to a criminal conviction for his conduct showed he was not wrongfully detained in any event; and (4) plaintiff’s claims were untimely based on failing to satisfy the tort claim deadlines predicate to the litigating the claims in court.
Even though the action was filed without reasonable cause, the matter was still remanded because section 1021.7 is not mandatory such that the lower court had to exercise its discretion on the City’s request.