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■Garcia v. Santana, No. B206513

Californians Have the Right to Access the Courts

To trace the origins of California’s commitment to access to justice for all Californians, without respect to income, we begin with the right to proceed in forma pauperis, as Green did in this case.  In 1917, the Supreme Court, in Martin v. Superior Court (1917) 176 Cal. 289, held that the courts have the inherent authority to allow indigent parties, on a proper showing, to proceed without payment of court fees and costs, despite the absence of specific legislative authorization to do so.  Looking to the common law, the Court found the inherent power to remit fees:  “And this one would naturally expect to find since, imperfect as was the ancient common-law system, harsh as it was in many of its methods and measures, it would strike one with surprise to be credibly informed that the common-law courts of England shut their doors upon all poor suitors who could not pay fees, until parliament came to their relief.  Even greater would be the reproach to the system of jurisprudence of the State of California if it could truly be declared that in this twentieth century, by its codes and statutes, it had said the same thing. . . .”  (Id. at p. 294.)

Our Supreme Court returned to this issue in Isrin v. Superior Court (1965) 63 Cal.2d 153, where the Court faced the issue of whether a plaintiff, who otherwise qualified for in forma pauperis relief, could nonetheless be denied such relief because she was represented by counsel acting under a contingent fee contract.  The Court held that the right to proceed may not be denied under those circumstances, in part because the indigent should not be limited to choosing only from among counsel who would agree to subsidize those costs.  (Isrin v. Superior Court, supra, at p. 165.)  Moreover, a rule denying such relief would improperly restrict the cases that would come to court.  While cases in which liability, or the lack of liability, is apparent would not be affected by such a rule, it is precisely those cases where it is not clear that liability lies, or that merit is totally absent, where the law often is developed.  Whether those cases should be brought should not depend on the payment of court costs:  “The natural consequence of the . . . rule is that the indigent with an uncertain claim may go without counsel and, being a layman, may simply fail to assert what rights he has.  To the extent that [the rule] has the practical effect of restricting an indigent’s access to the courts because of his poverty, it contravenes the fundamental notions of equality and fairness which since the earliest days of the common law have found expression in the right to proceed in forma pauperis.  (See Martin v. Superior Court (1917) supra, 176 Cal. 289, 293-297.)”  (Isrin v. Superior Court, supra, 63 Cal.2d at p. 165.)

These fundamental principles of fairness and access extend to issues other than the right to proceed in forma pauperis.  In Baltayan v. Getemyan (2001) 90 Cal.App.4th 1427, the court considered whether the indigency of the plaintiff should be considered in determining the amount of the undertaking required by Code of Civil Procedure section 1030, which requires an undertaking by an out-of-state plaintiff where defendant has shown the reasonable possibility of a successful defense.  Holding that the failure to consider the financial status of the plaintiff, which resulted in the dismissal of the case because of his failure to post the required undertaking, was an abuse of discretion, the court explained, “dismissal of appellant’s case resulted in a manifest miscarriage of justice.  It effectively precluded appellant from litigating his claims simply because he is indigent and respondents proved a reasonable possibility of success.”  (Id. at p. 1435.)  In the court’s view, a showing that a case may be without merit was insufficient to bar access on financial grounds, even in the context of a statutory scheme designed to protect California defendants from the costs of lawsuits without demonstrable merit.

Justice Johnson’s concurring opinion in Baltayan traced the historical antecedents of the right to proceed in forma pauperis, and the rights of the indigent to access to California courts before and after the Supreme Court’s decision in Martin.  Noting that the Statutes of Henry VII and Henry VIII were incorporated into California law, the opinion noted that those statutes provided not only for waiver of pretrial fees and costs, but also for relief from automatic payment of the costs of the opponent should the indigent litigant lose.  (Baltayan v. Getemyan, supra, 90 Cal.App.4th at pp. 1437-1438.)  The consequences of such a loss, instead, were left to the discretion of the courts.  (Id. at p. 1447.)  The compelling lesson drawn should not be forgotten in the case at hand:  “In ruling indigents are entitled to waiver for security for costs, both England and California are saying one party’s economic interest in receiving its costs of litigation should it win cannot be used to deny an indigent party his fundamental right of access to the courts.  In other words, access trumps comfort.”  (Id. at p. 1442; see Alshafie v. Lallande (2009) 171 Cal.App.4th 421 [hearing on financial condition required to determine if out of state plaintiff must post bond; citing concurring opinion].)

This court recently confirmed the guiding principle that litigation costs are not intended to be used as a tool to deny access to the courts, nor to deter persons from asserting their rights at the cost of their ability to provide for the necessities of life.  In Cruz v. Superior Court (2004) 120 Cal.App.4th 175, we held that a hearing was required in the event of an evidentiary conflict concerning eligibility for in forma pauperis relief.  The fact that a litigant had some limited resources was insufficient to deny such a person the right to proceed, an entitlement grounded “in a common law right of access to the courts and constitutional principles of due process.  (Earls v. Superior Court (1971) 6 Cal.3d 109, 113-114.)”  (Cruz v. Superior Court, supra, at p. 185.) 

An argument similar to the Amar Plaza parties’ assertion that consideration of financial status would lead to a failure to discourage the indigent from filing claims of limited, or no merit, was asserted on behalf of imposing discovery referee fees on indigent parties as a means of discouraging abuse of the discovery rules.  The Court rejected that assertion squarely in Solorzano v. Superior Court (1993) 18 Cal.App.4th 603, 616-617.  There, instead, trial courts were directed to consider whether any allocation of fees could be fair and reasonable under the circumstances.[5] 

At base, the Amar Plaza parties’ arguments founder on the shoals of these cases, and the principles of access to justice.  In exercising its discretion to consider financial condition, the trial court properly declined to abandon these principles. [6]

■ HELD:

ATTORNEY'S FEES
In a dispute involving attorney's fees, trial court judgment is reversed where: 1) the trial court did not abuse its discretion in considering defendant's financial condition in setting the amount of attorney's fees; and 2) the statute requires the amount of fees to be reasonable, and the trial court failed to exercise its discretion and consider all the other necessary circumstances in setting the amount of attorney's fees to be awarded to the prevailing party.
Garcia v. Santana .-B206513-5/28/09 CA2/7
Garcia v. Santana .-B206513-5/28/09 CA2/7-PDF

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