Inoperability of CCP Section 128.6 Does Not Impact Defendants’ Ability to Award Fee Recovery Under POBR’s Fee-Shifting Provision.
California’s Public Safety Officers Procedural Bill of Rights (POBR) (Gov. Code sec. 3300 et seq.), which has certain safeguards for police persons, does provide for an award of attorney’s fees against a party who brings a bad faith or frivolous action under the guidelines set forth in CCP section 128.6. (See Gov. Code sec. 3309.5(d)(2).) The next case deals with a fee award under section 3309.5(d)(2).
Lancaster v. County of Yolo, Case No. C058651 (3d Dist. Oct. 29, 2009) (unpublished) deals with a situation where a former deputy sheriff’s case brought under POBR was dismissed upon demurrer, with the trial court awarding defendants fees and costs of $34,487.50 as against plaintiff and her attorneys under POBR’s fee-shifting provision.
Both sides appealed the fee award, but it was affirmed.
Plaintiff argued that the fee order was effectively void because CCP section 128.6 was inoperative. The Court of Appeal rejected this argument, observing that the POBR fee-shifting provision still allowed the lower court to use the procedure and substantive standards outlined in an inoperative provision, such that section128.6’s inoperability was inconsequential.
One of plaintiff’s attorneys complained that the fee motion was improperly noticed as to him, because it was only addressed against “plaintiff and her attorney.” This attorney argued he was but one of the attorneys so that the notice was not specific enough. Wrong. The supporting brief to the fee motion did refer to the specific attorney and mentioned his experience as a factor favoring a fee award against this particular attorney as well. In a word, he was on notice.