Garcia v. Santana

WOODS, Acting P. J., Concurring.

I respectfully concur in the judgment.

It appears to this concurring justice that whether one adopts the majority view articulated in the majority opinion or the view expressed by the dissent, the ultimate destination point is the same. A reversal is required. I explain with more specificity hereafter.

*478 The core issue in this appeal is whether the trial court properly exercised its discretion in ruling that the prevailing party on the merits was to receive “zero” dollars in attorneys’ fees, a ruling which is tantamount to refusing to award any attorneys’ fees, in my opinion. That determination was apparently made on the basis respondent was currently an in propria persona indigent and financially unable to pay any award of attorneys’ fees at the time the award was determined.

As the dissent observes, however, Civil Code section 1354, subdivision (c) appears to be at loggerheads with that ruling in that the Legislature has provided that upon prevailing, an award of attorneys’ fees shall be made. I agree with the dissent in maintaining that the use of the word shall in a statute generally indicates a mandatory application as stated by our high court in People v. Allen (2007) 42 Cal.4th 91, 102 [ 64 Cal.Rptr.3d 124 , 164 P.3d 557 ].

The majority, however, opines that the record made by the trial court does not lend itself to a definitive answer of whether or not the court properly exercised its required discretion in making the award because, apparently, the only factor considered by the trial court was the financial condition of the respondent at the time the award was made. Other factors, says the majority, should include application of the well litigated and settled concept commonly called the lode star method, but adjusted for consideration of other factors depending on the facts presented in a particular case. I agree that financial condition is one such other factor to be considered by the trial court in considering an award of attorneys’ fees.

It is clear to this concurring justice that the trial court erred in arriving at a zero determination in fixing attorneys’ fees, which is tantamount to refusing to award attorneys’ fees, in my opinion. The matter should be reversed and remanded to the trial court for it to reconsider awarding attorneys’ fees as is mandated by Civil Code section 1354, subdivision (c) and in exercising its discretion as to the amount to make manifest what factors it is utilizing in making the award.

I also write separately to express some discomfort with the separate concurring opinion of Justice Johnson in Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427, 1436 [ 110 Cal.Rptr.2d 72 ] on which the majority in this case places extensive reliance. Justice Johnson opined in a scholarly manner that an out-of-state indigent defendant cannot be required to post a bond before accessing and defending a law suit in the State of California. Initially, I note that the facts in Baltayan are clearly distinguishable from the instant case, raising a question of the precedential value of Baltayan to this case. Second, Justice Johnson sums up his concurring opinion by stating “In other words, access trumps comfort.” (Id. at p. 1442 (cone. opn. of Johnson, J.).)

*479 In spite of the lofty and appealing principle sought to be illuminated by Justice Johnson, the words are unsettling to this concurring justice. By implication, the scales of justice must always tip in favor of access. I do not find that to always be the case. One example comes immediately to mind pertaining to vexatious litigants. In applying the vexatious litigant statute, access to the courts is curtailed, and indeed precluded in some instances, by requiring prior court ordered permission to access the courts by an offending party. (Code Civ. Proc., § 391 et seq.) I find the bright-line concept of Justice Johnson’s concurrence to be noble and high minded but too broad to be of utility in all cases.

I respectfully concur in the judgment for the reasons stated.