Filed 8/29/14

                            CERTIFIED FOR PUBLICATION


                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                      DIVISION ONE

                                   STATE OF CALIFORNIA



ALBERTO DANIEL SAUCEDO SUAREZ,                   D065949

        Plaintiff and Appellant,

        v.                                       (Super. Ct. No. RIC523036)

CITY OF CORONA,

        Defendant and Respondent;

ROBINSON CALGANIE ROBINSON
SHAPIRO DAVIS, INC., et al.,

        Objectors and Appellants.


        APPEAL from a judgment of the Superior Court of Riverside County,

Paulette Durand-Barkley, Commissioner. Affirmed in part and reversed in part.

        Robinson Calcagnie Robinson Shapiro Davis, Kevin F. Calcagnie and

Patrick B. Embrey for Plaintiff and Appellant and for Objectors and Appellants.

        Best Best & Krieger, Kira L. Klatchko and Irene S. Zurko for Defendant and

Respondent.
       Alberto Daniel Saucedo Suarez and his attorneys, Allan F. Davis and the law firm

of Robinson Calcagnie Robinson Shapiro Davis, Inc. (together, the Attorneys and with

Suarez, Appellants), appeal from the trial court's award of attorney fees and costs to the

City of Corona (the City) under Code of Civil Procedure section 1038 (section 1038).

(Undesignated statutory references are to this code.) Appellants contend the trial court

erred because (1) section 1038 does not authorize an award of attorney fees and costs

against a party's counsel, (2) the commissioner issuing the award did not have

jurisdiction, (3) the award was not proper where the action was brought and maintained

with reasonable cause, (4) the fees and costs awarded were not reasonably and

necessarily incurred, and (5) the award violated due process. We agree that section 1038

does not authorize an award of fees and costs against a party's attorney. Accordingly, we

reverse that portion of the judgment awarding the City its fees and costs against the

Attorneys. In all other respects, we affirm.

                  FACTUAL AND PROCEDURAL BACKGROUND

       In 2008, Suarez was injured when the compressed natural gas (CNG) tank in a van

in which he was a passenger exploded while being filled at a fueling station owned by the

City. In April 2009, Suarez sued the City and a number of other defendants. Suarez

proceeded against the City on a theory of dangerous condition of public property under

Government Code section 835.

       According to the Corona Fire Department fire investigation report, the explosion

was an accident caused by the rupturing of a CNG cylinder in the van. Shortly after the



                                               2
accident, the Southern California Gas Company tested the fuel lines at the filling station.

It did not discover any leaks in the lines.

       Appellants requested to inspect the CNG tank and the van to which the tank had

been affixed at the time of the accident. Those inspections took place in October 2009.

Livio Gambone, an engineer with experience in alternative fuels vehicle testing and

failure analysis of CNG cylinders, examined the van's ruptured cylinder. Gambone found

the cylinder had "stress corrosion cracking," which is "cracking induced from the

combined influence of tensile stress and a corrosive environment." Gambone's tests of

the cylinder revealed the presence of sulphuric acid. He concluded the CNG cylinder

ruptured during fueling "as a result of exposure to sulphuric acid from contents carried in

the cargo area of the subject van."

       In November 2009, the City served Suarez with a statutory offer to compromise

under section 998. In that offer, the City agreed to waive costs in exchange for a

dismissal with prejudice. Suarez did not respond to the offer and it expired.

       Between December 2009 and April 2010, the City responded to Suarez's written

discovery requests. The City produced maintenance and inspection reports for the CNG

system and dispenser and the fire investigation report. The City also provided

information that since the CNG system became operational, the City did not have reports

of any prior incidents or claims for damages in regard to any aspect of the CNG system

or dispenser. Suarez did not propound additional discovery, set depositions of the City's

personnel or notice inspections of the CNG station.



                                              3
       In early 2011, Appellants requested that the City transfer the CNG tank and van to

them. The City responded by stating that it would agree to waive costs and release the

tank and van in exchange for dismissal of the City. The City informed Appellants that

the evidence did not establish that the City had notice of a dangerous condition.

Moreover, the City reminded Appellants that although they had the City's discovery

responses and documents for over a year, they had not proceeded with other discovery

with respect to the City and the case had been idle for a significant period of time. Due to

the lack of evidence of a dangerous condition, the City requested that Suarez provide

them with his theory of liability against the City. The Attorneys did not respond to this

inquiry and refused to dismiss the City.

       In May 2011, the City reiterated its request that Suarez articulate a theory of

liability against it. The City also informed Appellants that defense costs had increased

dramatically because the case was nearly three years old and suggested dismissal of the

City before the City filed a motion for summary judgment.

       In May and June 2011, Appellants deposed the City's personnel. Xente Baker,

who had investigated the accident, testified there was no indication that the source of the

ignition came from the fuel dispenser. He also stated that he did not identify any design

defects or issues with the City's operation or maintenance of the filling station. Steve

Szueber, another City employee, testified that the City had never received any complaints

regarding overpressurization, overfilling, or dispenser design defects. Szueber was not

aware of any dispenser or valve malfunctions or gas leaks occurring at the time of the

accident.

                                             4
       After the depositions, the City again demanded that Appellants dismiss the case

due to lack of evidence regarding the City's liability or provide the City with Suarez's

theory of liability. The City also informed the Attorneys that in light of the lack of

evidence against the City and the absence of articulated facts supporting Suarez's theory

of liability, the lawsuit was frivolous within the meaning of section 1038. The City stated

that if the case was not dismissed, it would move for summary judgment and seek

recovery of its fees and costs.

       In September 2011, the City moved for summary judgment or, in the alternative,

summary adjudication. The City argued there was no dangerous condition, it did not

have actual or constructive notice, and design immunity applied. Suarez opposed the

motion on multiple grounds, including that the filling station's pump system, which was

manufactured by one of the other defendants, was defective and overpressurized the CNG

cylinder in the van. Suarez asserted that the City was liable for the dangerous condition

created by the pump system's manufacturer. The trial court granted the City summary

judgment, finding Suarez did not raise a triable issue of fact as to whether there was a

dangerous condition at the City's property.

       After it obtained summary judgment, the City moved to recover its defense costs

under section 1038. It requested an award of $135,904.67 jointly and severally against

Appellants. The City argued the award was warranted against Appellants because the

action was not brought and maintained with reasonable cause. Specifically, the City

asserted there was never any evidence of a dangerous condition of public property,

discovery revealed the absence of the City's liability, in opposition to the City's summary

                                              5
judgment motion, Suarez did not dispute the City's lack of actual or constructive notice,

and Suarez never inspected the allegedly dangerous condition during the course of over

two years of litigation.

       Suarez opposed the City's section 1038 motion, contending the motion was

premature because the City had not prepared and the court had not entered an order

granting summary judgment, the City failed to show he brought the action without

reasonable cause and good faith, Appellants maintained the case with a good faith belief

that a dangerous condition existed, the City's motion should have been raised so as to be

heard at the same time as the summary judgment, it was unfair and unduly burdensome to

require him to oppose the motion shortly before trial against the other parties, and the

City's claim for defense costs was excessive.

       In March 2012, a commissioner heard the City's motion for defense costs. The

commissioner indicated her tentative ruling was to deny the motion, but she continued the

hearing to allow for entry of the order granting summary judgment. At the continued

hearing, the commissioner heard further arguments and indicated her tentative was to

grant the City's motion. Following that hearing, the commissioner issued a minute order

awarding the City fees and costs. The court stated it "[did] not find it proper to award

fees from the onset of the case, Plaintiff did complete discovery as of April 2010, and

evidence did not support moving forward based on the rulings made in summary

judgment proceedings." Thus, the court awarded the City $102,296.20 in fees and

$3,753.85 in costs. The commissioner later signed a formal order requiring Appellants,

jointly and severally, to pay the City its fees and costs incurred from April 2010.

                                             6
                                       DISCUSSION

                            I. City's Request for Judicial Notice

       The City requests that we take judicial notice of (1) Assembly Bill No. 3214

(1978-1980 Reg. Sess.), as introduced March 11, 1980, and (2) an analysis of Assembly

Bill No. 3214 (1978-1980 Reg. Sess.), as amended June 18, 1990, prepared for the Senate

Committee on Judiciary. We grant the motion, but do not rely on the judicially-noticed

documents in interpreting section 1038. (Evid. Code, §§ 452, subd. (c), 459, subd. (a).)

If there is only one reasonable construction of statutory language, then we need not

consider the legislative history and other extrinsic aids in determining the statute's

legislative purpose. (Cf. Abernathy v. Superior Court (2007) 157 Cal.App.4th 642, 648-

649; County of Los Angeles v. Superior Court (1993) 18 Cal.App.4th 588, 594-595.)

Nevertheless, there is nothing in those documents that changes our analysis or the result

in this case.

                      II. Fees and Costs Award against the Attorneys

       Appellants contend the trial court erred because section 1038 does not authorize an

award of attorney fees and costs against a party's counsel. We agree.

       Section 1038 "provides public entities (which, since 1983, have been

constitutionally proscribed from filing malicious prosecution actions) and other specified

defendants with a way to recover the costs of defending against unmeritorious and

frivolous litigation." (Kobzoff v. Los Angeles County Harbor/UCLA Medical Center

(1998) 19 Cal.4th 851, 857 (Kobzoff).) The statute states the following:



                                              7
                    "In any civil proceeding under the Government Claims Act
          . . . or for express or implied indemnity or for contribution in any
          civil action, the court, upon motion of the defendant or cross-
          defendant, shall, at the time of the granting of any summary
          judgment . . . determine whether or not the plaintiff, petitioner,
          cross-complainant, or intervenor brought the proceeding 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, petition, cross-complaint, or complaint in
          intervention. If the court should determine that the proceeding was
          not brought in good faith and with reasonable cause, an additional
          issue shall be decided as to the defense costs reasonably and
          necessarily incurred by the party or parties opposing the proceeding,
          and the court shall render judgment in favor of that party in the
          amount of all reasonable and necessary defense costs, in addition to
          those costs normally awarded to the prevailing party." (§ 1038,
          subd. (a) (italics added).)

Section 1038 encompasses both the initial filing of an action and its continued

maintenance if done without good faith and reasonable cause. (Curtis v. County of Los

Angeles (1985) 172 Cal.App.3d 1243, 1252 (Curtis).)

       Matters presenting pure questions of law, not involving resolution of disputed

facts, are subject to the appellate court's independent review. (Ghirardo v. Antonioli

(1994) 8 Cal.4th 791, 799.) Moreover, questions of statutory interpretation and the

applicability of a statutory standard to undisputed facts, also present questions of law,

which we review de novo. (Harustak v. Wilkins (2000) 84 Cal.App.4th 208, 212.)

Although Appellants did not raise their argument in the trial court, we exercise our

discretion to consider it because it raises a question of law based on undisputed facts.

(Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 24; Martinez v. Scott Specialty

Gases, Inc. (2000) 83 Cal.App.4th 1236, 1249.)



                                              8
       Our review begins with the fundamental premise that "in construing a statute we

ascertain the Legislature's intent in order to effectuate the law's purpose. [Citation.] We

must look to the statute's words and give them their usual and ordinary meaning.

[Citation.] The statute's plain meaning controls the court's interpretation unless its words

are ambiguous. If the plain language of a statute is unambiguous, no court need, or

should, go beyond that pure expression of legislative intent. [Citation.]" (Kobzoff, supra,

19 Cal.4th at pp. 860-861.) We are not free to give the words of a statute a definition

'different from the plain and direct import of the terms used.' [Citation.] Rather, it is our

role to ascertain the meaning of the words used, not to insert what has been omitted or

otherwise rewrite the law to conform to an intention that has not been expressed.

[Citation.]" (Gray Cary Ware & Freidenrich v. Vigilant Insurance Co. (2004) 114

Cal.App.4th 1185, 1190 (Gray).)

       The court in Settle v. State of California (2014) 228 Cal.App.4th 215 (Settle),

recently decided the issue of whether section 1038 authorizes the imposition of defense

costs against counsel and concluded it does not. We agree with the analysis and

conclusion in Settle as section 1038 is clear and unambiguous. The statute does not make

any reference to imposition of defense costs against a party's counsel. (Settle, at p. 218.)

The court's role under section 1038 is to determine whether the plaintiff, petitioner, cross-

complainant, or intervenor brought or maintained the action without good faith or

reasonable cause. (Carroll v. State of California (1990) 217 Cal.App.3d 134, 140

(Carroll).) The statute makes no mention of a party's "attorney" and we are not free to

rewrite the law to conform to an intention not expressed. (See Gray, supra, 114

                                              9
Cal.App.4th at p. 1190.) Rather, our role is to ascertain the meaning of the words used.

(Ibid.) If the Legislature had intended to make attorneys responsible for defense costs

under section 1038, we presume it would have stated so.

       Moreover, section 1038 provides that where the court determines the proceeding

was not brought in good faith and with reasonable cause, "the court shall render

judgment" in favor of the prevailing party. (Italics added.) A judgment cannot lie against

an attorney who is not a party to the action and is wholly void. (Moore v. Kaufman

(2010) 189 Cal.App.4th 604, 615.) The Legislature's use of the term "judgment"

indicates that it did not intend to impose liability on a party's counsel. Instead, the

remedy the Legislature elected may only be rendered against a party to the action.

       Relying on Carroll, the City urges us to interpret section 1038 to impose

responsibility for defense costs against attorneys. In Carroll, the trial court ordered

plaintiffs and their counsel to pay defense costs under section 1038. (Id. at p. 139.) The

Court of Appeal affirmed the judgments; however, the court did not specifically consider

the argument of whether section 1038 authorizes an award of defense costs against

counsel. (Id. at p. 144.) Instead, the court analyzed section 1038's requirements of "good

faith" and "reasonable cause." (Carroll, at pp. 140-143.) "An opinion is not authority for

a point not raised, considered, or resolved therein." (Styne v. Stevens (2001) 26 Cal.4th

42, 57.)

       The City also relies heavily on cases in which courts have analogized section 1038

to malicious prosecution actions, which can be asserted against attorneys but not by

public entities. (See Crowley v. Katleman (1994) 8 Cal.4th 666, 690, fn. 13; Carroll,

                                              10
supra, 217 Cal.App.3d at pp. 141-142; Curtis, supra, 172 Cal.App.3d at pp. 1249-1250.)

Thus, the City asserts section 1038 provides an option for public entities to recover

defense costs incurred in defending against frivolous lawsuits. While this is true, section

1038 does not permit recovery against a party's counsel because the statute is silent as to

whom the award of defense costs may run against. (§ 1038.) It is not our role to insert

words into a statute or rewrite the law. (Gray, supra, 114 Cal.App.4th at p. 1190.)

       Our interpretation of section 1038 is consistent with well established authority that

"[f]ee awards against attorneys are ordinarily available only as sanctions and are

generally not allowed under routine fee-shifting provisions." (Moore v. Kaufman, supra,

189 Cal.App.4th at p. 615.) "[T]rial courts may not award attorney fees as a sanction for

misconduct absent statutory authority (or an agreement of the parties)." (Clark v. Optical

Coating Laboratory, Inc. (2008) 165 Cal.App.4th 150, 164.) Legislative silence on

whether attorney fees may be assessed against counsel does not constitute statutory

authority for sanctions against counsel. (See Doyle v. Superior Court (1991) 226

Cal.App.3d 1355, 1358-1359.)

       As we already explained, section 1038, subdivision (a) empowers the court to

award the prevailing party its defense costs if the court determines the proceeding was

not pursued with reasonable cause and in the good faith belief that there was a justifiable

controversy. As such, section 1038 requires the court to look at the actions of the

plaintiff, petitioner, cross-complainant, or intervenor and to render judgment, but the

statute makes no express provision for an award of defense costs against counsel as



                                             11
sanctions or otherwise. Without statutory authorization, we conclude defense costs under

section 1038 may not be imposed against a party's attorney.

                                       III. Jurisdiction

       Appellants contend the commissioner issuing the award of defense costs to the

City did not have jurisdiction. Specifically, Appellants contend a motion under section

1038 must be heard by the same judge who heard the motion for summary judgment. We

reject Appellants' argument.

       In general, "a motion for costs [under section 1038] should be filed at the earliest

practical time 'prior to the discharge of the jury or entry of judgment' [citation], and that

(unless the judge is unavailable) the motion for costs must be heard by the same judge

who heard the dispositive motion." (Gamble v. Los Angeles Dept. of Water & Power

(2002) 97 Cal.App.4th 253, 259 (Gamble).) However, parties may stipulate to the

jurisdiction of a court commissioner. (See In re Horton (1991) 54 Cal.3d 82, 90.) This

stipulation can be inferred from counsel's conduct. (Id. at p. 91.)

       Here, there is no indication in the record that the judge who heard the City's

summary judgment motion was unavailable. Regardless, neither party objected to the

commissioner's authority during two separate hearings on the matter. In fact, during the

first hearing when the commissioner's tentative ruling was to deny the City's motion for

costs, Suarez counsel stated there was no need to continue the hearing to allow the City to

submit an order on its summary judgment motion; thus, counsel indicated Suarez was

willing to accept the commissioner's ruling at that point. "An attorney may not sit back,

fully participate in a trial and then claim that the court was without jurisdiction on

                                              12
receiving a result unfavorable to him." (Estate of Lacy (1975) 54 Cal.App.3d 172, 182.)

That is precisely the situation in this case. Accordingly, we reject Appellants' argument

that the commissioner did not have jurisdiction to hear the City's section 1038 motion.

                                   IV. Reasonable Cause

       Appellants contend the trial court's award of fees and costs was not proper because

they brought and maintained the action with reasonable cause. We disagree.

        In order to recover defense costs under section 1038, the court must " 'determine

whether or not the plaintiff, . . . brought the proceeding with reasonable cause and in the

good faith belief that there was a justiciable controversy under the facts and law which

warranted the filing of the complaint.' " (Carroll, supra, 217 Cal.App.3d at p. 140.) This

inquiry "encompasses not only the filing of an action, but also its continued

maintenance." (Curtis, supra, 172 Cal.App.3d at p. 1252.)

       "Reasonable cause" is an objective standard which asks whether any reasonable

attorney would have thought the claim tenable. (Carroll, supra, 217 Cal.App.3d at p.

140.) For purposes of section 1038, "reasonable cause" is synonymous with "probable

cause." (Carroll, at p. 141.) " '[W]hen, . . . the facts known by the attorney are not in

dispute, the probable cause issue is properly determined by the trial court under an

objective standard; it does not include a determination whether the attorney subjectively

believed that the . . . claim was legally tenable. [Citations.]' " (Id. at p. 142.) We review

section 1038's "reasonable cause" prong de novo. (Hall v. Regents of University of

California (1996) 43 Cal.App.4th 1580, 1586.)



                                              13
       As a preliminary matter, we note the City argues Appellants maintained the action

without good faith and reasonable cause. The City did not raise section 1038's good faith

prong in its motion for defense costs and instead relied on Appellants' lack of reasonable

cause. Accordingly, we focus our analysis on whether Appellants maintained the action

without reasonable cause.

       To assert that they had reasonable cause, Appellants primarily rely on the fact the

trial court denied a summary judgment motion brought by the pump system

manufacturer, which Appellants claim establishes there was a question of material fact as

to the liability of a City contractor and thus the City. However, Appellants fail to

acknowledge that Suarez's claims against the City differed from those against the other

defendants. His only claim against the City was based on a dangerous condition of public

property under Government Code section 835. To establish a "dangerous condition,"

Suarez had to show the City had "a condition of property that create[d] a substantial (as

distinguished from a minor, trivial or insignificant) risk of injury when such property or

adjacent property [was] used with due care in a manner in which it is reasonably

foreseeable that it will be used." (Gov. Code, § 830, subd. (a).) Appellants have not

pointed us to any evidence revealing the City's property constituted a dangerous

condition.

       Even if Suarez had reasonable cause to initiate his action against the City, the

record in this case reveals that no attorney would have thought Suarez's claims were

tenable after receiving the City's written discovery responses. By April 2010, the City

had responded to Suarez's discovery requests by producing maintenance and inspection

                                             14
reports for the CNG system and dispenser and the fire investigation report, which

concluded that the explosion was an accident caused by the rupturing of a CNG cylinder

in the van. The City also provided information that since the CNG system became

operational, it did not have reports of any prior incidents or claims for damages in regard

to any aspect of the CNG system or dispenser. The City's information did not reveal the

presence of a dangerous condition on public property.

       Moreover, Appellants had information from other sources that showed the

accident was not caused by a dangerous condition on the City's property. For example,

Appellants knew the Southern California Gas Company tested the fuel lines at the filling

station shortly after the accident and did not discover any leaks in the lines. Further,

Gambone investigated the accident in October 2009 and concluded the accident occurred

due to a ruptured cylinder on the van which was caused by exposure to sulphuric acid in

the van's cargo area.

       The City made numerous demands on Appellants to dismiss the case against it or

provide a viable theory of liability. Appellants ignored these demands and let the case

languish against the City. Appellants made no effort to move the case forward for

approximately one year. There is nothing in the record evidencing that Appellants had a

viable theory of liability against the City. Accordingly, they did not have reasonable

cause to continue the action.

              V. Reasonableness and Necessity of Fees and Costs Incurred

       Appellants contend the fees and costs awarded were not reasonably and

necessarily incurred. We reject this argument.

                                             15
       The trial court is authorized by section 1038 to make an award of "all reasonable

and necessary defense costs." (§ 1038, subd. (a).) As defined in section 1038, defense

costs "include reasonable attorneys' fees, expert witness fees, the expense of services of

experts, advisers, and consultants in defense of the proceeding, and where reasonably and

necessarily incurred in defending the proceeding." (§ 1038, subd. (b).)

       We apply a deferential standard of review. When making an award of attorney

fees, "the trial court has broad authority to determine the amount of a reasonable fee."

(PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) "The determination of

what constitutes the actual and reasonable attorney fees is committed to the sound

discretion of the trial court. An appellate court will interfere with that determination only

where there has been a manifest abuse of discretion." (Fed-Mart Corp. v. Pell

Enterprises, Inc. (1980) 111 Cal.App.3d 215, 228.) " 'The "experienced trial judge is the

best judge of the value of professional services rendered in his court, and while his

judgment is of course subject to review, it will not be disturbed unless the appellate court

is convinced that it is clearly wrong'—meaning that it abused its discretion." (PLCM

Group, Inc. v. Drexler, supra, at p. 1095.)

       Appellants argue the City failed to show that its defense costs were "reasonably

and necessarily incurred" because it did not provide an explanation of those costs.

However, the City provided the court with detailed time records and a declaration from

counsel establishing the defense costs incurred. The City's counsel also provided a

breakdown of fees incurred commencing from various points in time. The information



                                              16
the City provided was sufficient to support its motion for defense costs under section

1038.

                                       VI. Due Process

        Appellants contend the trial court's award of fees and costs against the Attorneys

violated due process. Based on our conclusion that section 1038 does not authorize an

award of defense costs against a party's counsel (ante, part II), we need not consider

Appellants due process argument as it relates to the Attorneys.

        In regard to Suarez, Appellants argue the trial court's award of defense costs

violated due process because the City did not provide Suarez with adequate notice of its

motion. Specifically, Appellants argue that in order to give Suarez sufficient notice, the

City should have filed its motion for defense costs so that it could be heard at the same

time as the City's summary judgment motion.

        The timing of section 1038 motions was considered in Gamble, supra, 97

Cal.App.4th at p. 259. After considering the statute's legislative history, the court

concluded "[t]o give effect to the purposes of section 1038 until the Legislature or the

Judicial Council dictates a different result, we construe the statute to mean that a motion

for costs should be filed at the earliest practical time 'prior to the discharge of the jury or

entry of judgment.' " We see no reason to depart from the Gamble court's conclusion and

find no due process violation, especially where, as here, Suarez had ample opportunity to

oppose the City's motion and did so over the course of two hearings on the matter.

Lastly, we note that Suarez never asserted in the trial court that he did not have adequate

notice or that the City's section 1038 motion resulted in a due process violation.

                                               17
      Based on the foregoing, we reject Suarez's due process argument.

                                    DISPOSITION

      The judgment is reversed to the extent that it awards the City defense costs against

the Attorneys. In all other respects, the judgment is affirmed. Respondent is awarded

costs on appeal.



                                                                     MCINTYRE, J.

WE CONCUR:

BENKE, Acting P. J.

IRION, J.




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