# Garcia v. Santana

> California Court of Appeal · May 28, 2009 · 174 Cal. App. 4th 464

URL: https://www.frixlaw.com/law-library/cases/9747538

## Case

- **Full name:** RITO GARCIA Et Al., Plaintiffs, v. PAULINA SANTANA Et Al., Defendants; SHARON GREEN, Intervener and Respondent; CUAUHTEMOC LOPEZ Et Al., Interveners and Appellants
- **Court:** California Court of Appeal
- **Decided:** May 28, 2009
- **Citations:** 174 Cal. App. 4th 464; 94 Cal. Rptr. 3d 299; 2009 Cal. App. LEXIS 841
- **Precedential status:** Published
- **Opinion:** Concurring in part by Jackson
- **Judges:** Zelon, Woods, Jackson
- **Cited by:** 34 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9747538

## Opinion text

JACKSON, J., Concurring and Dissenting.
While I concur in the majority’s holding that the attorney’s fees award must be reversed, I respectfully dissent as to the rationale. In my view, the trial court abused its discretion in awarding no attorney’s fees based solely on Green’s indigency, and it should not consider Green’s indigency in making its award.
Civil Code section 1354, subdivision (c) (section 1354(c)), provides that “[i]n an action to enforce the governing documents, the prevailing party shall be awarded reasonable attorney’s fees and costs.” It is this statute which governs our review of the trial court’s award of no attorney’s fees.
In the construction of statutes, our primary goal is to ascertain and give effect to the intent of the Legislature. (Code Civ. Proc., § 1859; Troppman v. Valverde (2007) 40 Cal.4th 1121, 1135 [ 57 Cal.Rptr.3d 306 , 156 P.3d 328 ].) Our role “is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted, or to omit what has been inserted; and where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all.” (Code Civ. Proc., § 1858; see California Fed. Savings & Loan Assn. v. City of Los Angeles (1995) 11 Cal.4th 342, 349 [ 45 Cal.Rptr.2d 279 , 902 P.2d 297 ].)
We look first to the language of the statute; if clear and unambiguous, we will give effect to its plain meaning. (Prachasaisoradej v. Ralphs Grocery Co., Inc. (2007) 42 Cal.4th 217, 227 [ 64 Cal.Rptr.3d 407 , 165 P.3d 133 ].) When construing the statute, we turn first to the words themselves, giving them their usual, ordinary meanings. (People v. Allegheny Casualty Co. (2007) 41 Cal.4th 704, 708-709 [ 61 Cal.Rptr.3d 689 , 161 P.3d 198 ].) If possible, each word and phrase should be given significance. (People v. Mays (2007) 148 Cal.App.4th 13, 29 [ 55 Cal.Rptr.3d 356 ].) The words used “must be construed in context, and statutes must be harmonized, both internally and with each other, to the extent possible.” (California Mfrs. Assn. v. Public Utilities Com. (1979) 24 *480 Cal.3d 836, 844 [ 157 Cal.Rptr. 676 , 598 P.2d 836 ]; accord, Troppman v. Valverde, supra, 40 Cal.4th at p. 1135, fn. 10 .)
The language of section 1354(c) is clear and unambiguous. It provides that “the prevailing party shall be awarded reasonable attorney’s fees and costs.” “Shall” is generally construed to mean “mandatory.” (People v. Allen (2007) 42 Cal.4th 91, 102 [ 64 Cal.Rptr.3d 124 , 164 P.3d 557 ].) Thus, the only interpretation of section 1354(c) which gives effect to each word in the section is that the section entitles the prevailing party to an award of reasonable attorney’s fees and costs.
As the majority recognizes, the Supreme Court has stated that, in determining reasonable attorney’s fees under Civil Code section 1717, subdivision (a), the court “ordinarily begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. ‘California courts have consistently held that a computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys’ fee award.’ ” (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095 [ 95 Cal.Rptr.2d 198 , 997 P.2d 511 ].) The court may then adjust the lodestar figure based upon factors specific to the case before it, including “ ‘the nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure, and other circumstances in the case.’ ” (Id. at pp. 1095-1096.) Nothing in the Supreme Court’s opinion as to the calculation of a reasonable attorney’s fees award, or in section 1354(c) itself, suggests that an award of attorney’s fees may essentially be denied based solely on the losing party’s indigence, or that the court is even to consider the losing party’s indigence.
While the courts may have the inherent authority to permit indigent parties to litigate their cases without payment of court fees, this does not mean the courts have inherent authority to permit indigent parties to litigate their cases without payment of statutorily authorized attorney’s fees and costs to the opposing party. It is one thing for the court to forgo collection of its fees to allow indigent parties to litigate their cases. It is quite another to force parties to forgo attorney’s fees and costs to which they would otherwise be entitled to enable indigent parties to pursue litigation against them. Certainly, if the indigent parties prevailed in the litigation, they would insist upon being awarded attorney’s fees and costs as the prevailing parties. Basic fairness demands that the opposing parties be able to recover their attorney’s fees and costs as well. Previous decisions by this court cited by the majority do not compel a contrary conclusion.
Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427 [ 110 Cal.Rptr.2d 72 ] involved a request for a waiver of the undertaking required of *481 an out-of-state plaintiff under certain conditions. We noted that “[w]here the plaintiff establishes indigency, a trial court has discretion to waive the posting of security under Code of Civil Procedure section 1030.” (Baltayan, supra, at p. 1433 .) Since the plaintiff in that case had been granted in forma pauperis status, we held that “the trial court acted arbitrarily and capriciously in refusing to either vacate or reduce the amount of the undertaking.” (Id. at p. 1435.)
Thereafter, we noted that “dismissal of [the plaintiff’s] case resulted in a manifest miscarriage of justice. It effectively precluded [him] from litigating his claims simply because he is indigent and [defendants] proved a reasonable possibility of success.” (Baltayan v. Estate of Getemyan, supra, 90 Cal.App.4th at p. 1435 .)
Baltayan does not support the proposition that an indigent plaintiff, who was granted access to the courts but lost the case, is exempt from paying the damages to which the defendant is entitled, including, where applicable, attorney’s fees and costs. In his concurring opinion, Justice Johnson noted that there is no basis for treating an out-of-state indigent plaintiff differently than a resident indigent plaintiff: “ ‘In either instance the likelihood of a prevailing defendant collecting his costs is nil, because the plaintiff in each circumstance is a pauper.’ ” (Baltayan v. Estate of Getemyan, supra, 90 Cal.App.4th at p. 1442 (cone. opn. of Johnson, J.).) The defendant is still entitled to his costs and attorney’s fees upon prevailing, he just may be unable to collect them. The court merely exempts an indigent out-of-state plaintiff from paying them up front as security in order to litigate his case.
Rosenman v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro (2001) 91 Cal.App.4th 859 [ 110 Cal.Rptr.2d 903 ] involved a discretionary award of attorney’s fees awarded under the California Fair Employment and Housing Act (Gov. Code, § 12900 et seq.). We noted that, in making an award, “[t]he trial court should . . . make findings as to the plaintiff’s ability to pay attorney fees, and how large the award should be in light of the plaintiff’s financial situation.” ( 91 Cal.App.4th at p. 868, fn. 42 .) We expressed concern that “an award of attorney fees ‘ “should not subject the plaintiff to financial ruin.” ’ ” (Ibid.) Because attorney’s fees were discretionary in Rosenman , the decision does not support a conclusion that a plaintiff’s indigence precludes an award of attorney’s fees where such an award is mandated by statute.
Patton v. County of Kings (9th Cir. 1988) 857 F.2d 1379 similarly involved a discretionary attorney’s fees award in a civil rights case. The court agreed that the trial court should consider the plaintiff’s financial resources in awarding attorney’s fees. It added, however, that “ ‘a district court should not *482 refuse to award attorney’s fees to a prevailing defendant . . . solely on the ground of the plaintiff’s financial situation.’ ” (Id. at p. 1382.) That is exactly what occurred here.
If the Legislature had intended that an award of attorney’s fees and costs under section 1354(c) be contingent upon a party’s ability to pay in order to ensure access to the courts, it certainly had the ability to specify this to be the case in the statute. For example, Family Code section 2030, subdivision (a), provides: “(1) In a proceeding for dissolution of marriage . . . and in any proceeding subsequent to entry of a related judgment, the court shall ensure that each party has access to legal representation to preserve each party’s rights by ordering, if necessary based on the income and needs assessments, one party, except a governmental entity, to pay to the other party, or to the other party’s attorney, whatever amount is reasonably necessary for attorney’s fees and for the cost of maintaining or defending the proceeding during the pendency of the proceeding. [j[] (2) Whether one party shall be ordered to pay attorney’s fees and costs for another party, and what amount shall be paid, shall be determined based upon, (A) the respective incomes and needs of the parties, and (B) any factors affecting the parties’ respective abilities to pay. A party who lacks the financial ability to hire an attorney may request, as an in pro per litigant, that the court order the other party, if that other party has the financial ability, to pay a reasonable amount to allow the unrepresented party to retain an attorney in a timely manner before proceedings in the matter go forward.” That the Legislature did not use similar language in section 1354(c) suggests that it intended the award of attorney’s fees and costs to be mandatory, and that it did not intend to exempt indigent plaintiffs from paying such an award.
I disagree with the majority’s position that an award of attorney’s fees in this case would constitute the denial of access to the courts or punishment for bringing an unsuccessful lawsuit. Plaintiff was not denied access to the court: she was permitted to file and pursue her litigation. She was not punished for bringing an unsuccessful lawsuit; the award of attorney’s fees was not a sanction imposed at the discretion of the trial court (e.g., In re Marriage of Norton (1988) 206 Cal.App.3d 53, 59 [ 253 Cal.Rptr. 354 ]). She was simply required to pay attorney’s fees as a cost of bringing an unsuccessful lawsuit. This requirement is no different that requiring the losing party in a suit upon a contract containing an attorney’s fees provision to pay such fees.
Requiring the losing party to pay reasonable attorney’s fees and costs pursuant to statute is not a denial of access to the courts. Indigent litigants have access to the courts by way of fee waivers, not only to file their cases but also for other matters, including fee waivers for jury fees. I do not believe that enforcing a mandatory award of reasonable attorney’s fees and costs will *483 have a chilling effect on litigation by indigent litigants. Moreover, I do not believe it is right to penalize a defendant who prevails in litigation into which he has been involuntarily thrust by preventing him from recovering what the Legislature has determined to be a just award.
Since the trial court failed to consider the relevant factors but arbitrarily awarded Amar Plaza no attorney’s fees and costs based solely on Green’s indigence, I would hold the award to be an abuse of discretion. (Ohton v. Board of Trustees of California State University (2007) 148 Cal.App.4th 749, 766 [ 56 Cal.Rptr.3d 111 ].) I would therefore reverse and direct the trial court to award Amar Plaza reasonable attorney’s fees and costs, after considering the appropriate factors—which do not include Green’s indigency—as set forth in PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th at pages 1095-1096.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9747538. Public record. Not legal advice.