Collins v. State Dept. of Transp.

• Decision Date: 24 December 2003
• Docket Number: No. C041238.,C041238.
• Citation: 114 Cal.App.4th 859,8 Cal.Rptr.3d 132
• Court: California Court of Appeals Court of Appeals
• Parties: William F. COLLINS, Plaintiff and Respondent, v. STATE DEPARTMENT OF TRANSPORTATION, Defendant and Appellant.

8 Cal.Rptr.3d 132

114 Cal.App.4th 859

William F. COLLINS, Plaintiff and Respondent, v. STATE DEPARTMENT OF TRANSPORTATION, Defendant and Appellant.

No. C041238.

Court of Appeal, Third District.

December 24, 2003.

As Modified on Denial of Rehearing January 21, 2004.

Review Denied May 12, 2004.

Bruce A. Behrens, Chief Counsel, Brelend C. Gowan, Deputy Chief Counsel, Richard A. Wehe, Assistant Chief Counsel, Gary A. Geren, El Dorado Hills, and Kevin M. Corrington, Sacramento, for Defendant and Appellant.

Law Offices of Tony J. Tanke and Tony J. Tanke; Law Offices of Joseph W. Carcione, Jr. and Joseph W. Carcione, Jr., Gerald K. Okimoto, Stephen J. Purtill, Redwood City, and Gary W. Dolinski, San Diego, for Plaintiff and Respondent.

SIMS, J.

The summary judgment statute, Code of Civil Procedure section 437c, former subdivision (i) provided:¹ "If the court determines at any time that any of the affidavits are presented in bad faith or solely for purposes of delay, the court shall order the party presenting the affidavits to pay the other party the amount of the reasonable expenses which the filing of the affidavits caused the other party to incur. Sanctions shall not be imposed pursuant to this subdivision, except on notice contained in a party's papers, or on the court's own noticed motion, and after an opportunity to be heard." (Stats.1994, ch. 493, § 1, pp. 2675-2676; italics added.)

With a minor change ("shall not" was changed to "may not"), this language appears in current subdivision (j) of section 437c. (Stats.2002, ch. 448, § 5.)

The question in this case is whether this statutory language, which authorizes a court to award "reasonable expenses" as a sanction, allows a court to award, as a sanction, attorney's fees incurred by the party to whom sanctions will be paid. For reasons that follow, we conclude it does not.

In this personal injury action by plaintiff William F. Collins,² defendant State Department of Transportation (Caltrans) appeals from a trial court order awarding sanctions for presenting a bad faith declaration in support of a summary judgment motion in violation of former subdivision (i) of section 437c. The sanctions award consisted entirely of attorney's fees incurred by plaintiff Collins. Caltrans argues it should not have been sanctioned as a matter of public policy, and that section 437c does not authorize an award of attorney's fees. Caltrans also argues there was no substantial evidence the declaration was presented in bad faith. Plaintiff requests sanctions on appeal.

We shall conclude section 437c does not authorize an award of attorney's fees as a sanction. We shall reverse the order awarding sanctions and deny plaintiff's request for sanctions on appeal, but we shall remand to the trial court for redetermination of plaintiff's claim for sanctions based upon out-of-pocket expenses other than attorney's fees.³

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff brought this personal injury action against Caltrans and others, alleging he was injured when 15 year-old Joshua Daniels threw a chunk of broken concrete at plaintiff's semi-tractor-trailer as it was traveling on Interstate Highway 5(I-5) over the Smith's Canal crossing in Stockton, California on December 4, 1997. The concrete penetrated the front windshield of the truck and struck plaintiff in the head.

As is pertinent here, the complaint alleged theories of premises liability and general negligence. Plaintiff alleged I-5 at the Smith's Canal crossing was in a dangerous condition because it provided pedestrians easy access to the traffic on I-5 and access to objects which pedestrians could throw at passing motorists and escape without detection.

Caltrans filed two summary judgment motions. The first motion argued, inter alia, that Caltrans had no actual or constructive notice of a dangerous condition.⁴ Caltrans submitted a declaration of a retired Caltrans engineer who attested, based upon his review of Caltrans's accident database (TASAS) and review of deposition testimony of a California Highway Patrol (CHP) officer who searched CHP's database, that there had been no reports to the CHP of anyone throwing rocks at motorists from Smith's Canal and no reports of accidents involving rocks at that location for a period of approximately nine years.

In opposition to the first summary judgment motion, plaintiff adduced the deposition testimony of two CHP officers, who testified about prior reports of rock throwing in the general vicinity of the south side of Smith's Canal prior to the incident involving plaintiff.

Plaintiff also objected to the admission of the TASAS report, on the ground it was irrelevant to prove notice because it was a traffic accident database, and rock throwing incidents are reported as arrests or investigations.

Shortly after plaintiff filed his opposition to the summary judgment motions, Caltrans withdrew the motions. The reason Caltrans gave for the withdrawal was that the discovery referee had ruled in plaintiff's favor on his motions to compel discovery. Caltrans asserted it was withdrawing the motions due to the uncompleted discovery.

Plaintiff filed a motion for sanctions against Caltrans pursuant to former subdivision (i) of Code of Civil Procedure section 437c (subdivision (i)), the substance of which is now found in subdivision (j) of section 437c.⁵ We have recounted the language of subdivision (i) at the outset of this opinion.

In support of his motion for sanctions, plaintiff argued, inter alia, that the declarations submitted by Caltrans were knowingly false because state employees (i.e., CHP Officers McClellan and Riisager) had given deposition testimony before the declarations were submitted, which proved the State had prior notice of rock throwing incidents. Plaintiff also argued Caltrans's declarations asserting no notice were knowingly misleading because its experts relied on the TASAS database, when it knew that database would never include rock throwing incidents.

The court ordered a hearing on the summary judgment motions (despite their withdrawal by Caltrans), consolidated with a hearing on the sanctions motion. After the court heard argument on all three motions, it entered written rulings, first on the summary judgment motions, then on the sanctions motion.

The trial court found with respect to the first summary judgment motion that plaintiff had produced sufficient evidence to create an inference Caltrans had notice of prior similar incidents, and that Caltrans had failed to demonstrate that other factors weighed against a finding of duty. The trial court denied both motions for summary judgment.

The trial court granted plaintiff's sanctions motion in part. The ruling stated: "The court finds that the affidavits supporting the first motion were filed in bad faith in violation of CCP § 437c(i). This finding is based in part on the fact that defendant was aware that there was evidence supporting plaintiffs' claim of notice, yet it represented to the court that there was no such evidence. In addition, it appears that defendant sought to mislead both the court and opposing counsel regarding the relevant database wherein information regarding prior similar incidents was to be found."

The trial court awarded sanctions in the amount of $28,725. All of the sanctions awarded represented attorney's fees incurred by plaintiff Collins. Caltrans appeals from the sanctions order.⁶

DISCUSSION

I. Attorney's Fees Not Authorized

Caltrans argues the trial court erred in interpreting subdivision (i), which provides for payment of "reasonable expenses which the filing of the affidavits caused the other party to incur," to include attorney's fees. We agree.

As a preliminary matter, we address plaintiff's claim Caltrans may not advance this argument for the first time on appeal. Ordinarily, an appellate court will not consider arguments not asserted below. (Ochoa v. Pacific Gas & Electric Co. (1998) 61 Cal.App.4th 1480, 1488, fn. 3, 72 Cal.Rptr.2d 232.) However, this rule does not apply when only a question of law is presented. (State of California ex rel. Public Works Bd. v. Bragg (1986) 183 Cal.App.3d 1018, 1023-1024, 228 Cal.Rptr. 576.) Here, the issue presented is the interpretation of subdivision (i). The facts are undisputed. The interpretation and applicability of a statute on the undisputed facts in the record is a question of law, which we may address for the first time on appeal. (Ibid.)

Caltrans relies on the American Rule, codified at section 1021 as follows: "Except as attorney's fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties...." Caltrans argues that subdivision (i), which awards simply "reasonable expenses" does not specifically include attorney's fees as required by section 1021.

"The goal of statutory construction is to ascertain and effectuate the intent of the Legislature. [Citation.]" (Pacific Gas & Electric Co. v. County of Stanislaus (1997) 16 Cal.4th 1143, 1152, 69 Cal.Rptr.2d 329, 947 P.2d 291.) In determining the Legislature's intent we look first to the language of the statute, giving the words their usual and ordinary meaning. (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192, 96 Cal.Rptr.2d 463, 999 P.2d 686.) If there is no ambiguity, the plain meaning of the language governs, but if the language is ambiguous, we may examine the context of the language and construe the language so as to harmonize the statute internally and with related statutes, keeping in mind the object to be achieved or the evil to be prevented. (Id. at pp. 192-193, 96 Cal.Rptr.2d 463, 999 P.2d 686.)

The term "reasonable expenses" does not necessarily include, nor does it necessarily preclude expenses incurred for attorney's fees.

However, the California Supreme Court in Bauguess v. Paine (1978) 22 Cal.3d 626, 150 Cal.Rptr. 461, 586 P.2d...