Settle

A patron orders a hamburger from the menu at a diner and asks the server if he can substitute edamame for french fries. “No substitutions,” says the server. We, like the server who cannot add or substitute entries on the menu, cannot add or substitute words in a statute.

Code of Civil Procedure 1038 requires a mandatory award of defense costs where the trial court grants summary judgment and finds that the plaintiff lacked reasonable cause and good faith in filing or maintaining a tort action against a public entity. (Kobzoff v. Los Angeles County Harbor/UCLA Medical Center (1998) 19 Cal.4th 851, 853 [ 80 Cal.Rptr.2d 803 , 968 P.2d 514 ].) Defense costs include reasonable attorney fees. (§ 1038, subd. (b).) Here, the trial court ordered plaintiff and her attorney, James McKiernan, to pay $11,457.65 attorney fees and costs pursuant to section 1038. McKiernan solely appeals. We reverse because section 1038 does not authorize defense costs against counsel.

Facts and Procedural History

In 2012 plaintiff sued the State of California (State) and City of Morro Bay (City) for dangerous condition of public property after a sand escarpment on the beach collapsed, causing her to…