Supreme Court of California Justia
Docket No. S103417
Martin v. Szeto

Filed 2/19/04

IN THE SUPREME COURT OF CALIFORNIA

CRAIG K. MARTIN,
S103417
Plaintiff and Respondent,
Ct.App. 1/4 A094405
v.
San Francisco County
RICHARD SZETO et al.,
Super. Ct. No. 999134
)

Defendants and Appellants.

We granted review to resolve a conflict in the lower courts over the proper
interpretation of Code of Civil Procedure section 1021.7.1 The section permits a
court to award attorneys’ fees to a peace officer, or to a public entity employing a
peace officer, that successfully defends an action for damages arising out of the
performance of the officer’s duties if the action was not filed or maintained in
good faith and with reasonable cause. The section also authorizes an award of
fees “in an action for libel or slander.” (Ibid.) In Planned Protective Services v.
Gorton (1988) 200 Cal.App.3d 1, the Court of Appeal held that section 1021.7
authorizes an award of fees in an action for libel or slander only if a peace officer
or an officer’s public employer is a party. (Id., at p. 15.) In the case before us, the
Court of Appeal rejected Gorton and awarded fees to the successful defendants in
a case not involving a peace officer. We reverse.

1
All further citations to statutes are to the Code of Civil Procedure, except as
noted.


I. BACKGROUND
Plaintiff Craig K. Martin sued defendants Richard Szeto and Anthony
Lincoln for slander. Plaintiff, an attorney, alleged that defendants falsely told
others he was “doing cocaine,” thus accusing him of a crime and injuring him in
his profession. (See Civ. Code, § 46.) Defendants moved for summary judgment
on the grounds (among others) that the statement was privileged under Civil Code
section 47, subdivisions (b) and (c), because defendants had made the statement to
business associates with whom they shared a common interest in plaintiff’s ability
to provide competent legal representation in an official proceeding before a local
planning commission. The superior court granted defendants’ motion on these
grounds and also because plaintiff filed no opposition.
After the superior court granted summary judgment, defendants moved for
attorneys’ fees under section 1021.7, as well as under other statutes not here at
issue. The superior court denied defendants’ motion for failure to show that
plaintiff had not filed or maintained the action in good faith and with reasonable
cause, as section 1021.7 requires. The Court of Appeal reversed. We granted
plaintiff’s petition for review.
II. DISCUSSION
The single question before us is whether section 1021.7 authorizes courts to
award attorneys’ fees in actions for libel and slander generally, or only in actions
involving peace officers. 2 We conclude the latter interpretation is correct.
Section 1021.7 provides as follows: “In any action for damages arising out
of the performance of a peace officer’s duties, brought against a peace officer, as
defined in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2 of the

2
We have no occasion to review the superior court’s order granting
summary judgment or the Court of Appeal’s decision that plaintiff did not file or
maintain his action in good faith and with reasonable cause.
2


Penal Code, or against a public entity employing a peace officer or in an action for
libel or slander brought pursuant to Section 45 or 46 of the Civil Code, the court
may, in its discretion, award reasonable attorney’s fees to the defendant or
defendants as part of the costs, upon a finding by the court that the action was not
filed or maintained in good faith and with reasonable cause.” (§ 1021.7, italics
added.) Defendants claim the italicized language permits the superior court to
award them attorneys’ fees even though the case does not involve a peace officer.
Read literally and in its grammatical context, the italicized language might support
that interpretation. Plaintiff, however, contends the statute’s legislative history
demonstrates the Legislature intended to permit courts to award attorneys’ fees
only in those libel and slander cases to which a peace officer or an officer’s public
employer is a party.
Defendants argue we may not consult the legislative history because section
1021.7 is not ambiguous. (See, e.g., Day v. City of Fontana (2001) 25 Cal.4th
268, 272.) We disagree. The statute is ambiguous. If the section had the meaning
defendants claim, it would likely violate article IV, section 9, of the California
Constitution, which provides that “[a] statute shall embrace but one subject, which
shall be expressed in its title.”3 This constitutional provision, by preventing
misleading or inaccurate titles, serves the important purpose of ensuring that
legislators and the public have reasonable notice of the scope and content of
proposed statutes. (Harbor v. Deukmeijian (1987) 43 Cal.3d 1078, 1096.) The
title of the act that became section 1021.7 is “[a]n act to add Section 1021.7 to the
Code of Civil Procedure, relating to peace officers, and making an appropriation

3
“A statute shall embrace but one subject, which shall be expressed in its
title. If a statute embraces a subject not expressed in its title, only the part not
expressed is void. A statute may not be amended by reference to its title. A
section of a statute may not be amended unless the section is re-enacted as
amended.” (Cal. Const., art. IV, § 9.)
3


therefore.” (Stats. 1981, ch. 980, p. 3806, italics added.) Because we presume the
Legislature intended to comply with the state Constitution, we must at least
consider the possibility that all parts of section 1021.7, consistently with its title,
relate to peace officers. This apparent inconsistency between the section’s
language and title creates an ambiguity that justifies resort to the legislative
history.
Defendants’ interpretation of section 1021.7 would, moreover, create a
significant and heretofore unrecognized 4 exception to the general rule that all
parties to litigation must pay their own attorneys’ fees. (§ 1021.) 5 Certainly the
Legislature may adopt exceptions to the general rule. Indeed, it has done so in
order to further a variety of policy goals. (See, e.g., § 1021.1 et seq.) The rule
plaintiff proposes would, presumably, serve the hypothetical policy goal of
deterring unmeritorious lawsuits for libel and slander. But a decision by this court
that section 1021.7 was, or was not, intended to serve that goal in cases not
involving peace officers deserves any additional certainty the legislative history
can afford.

4
Prior to the case on review, the only decision on point held that section
1021.7 authorized courts to award attorneys’ fees in libel and slander actions only
when a peace officers is involved. (Planned Protective Services, Inc. v. Gorton,
supra, 200 Cal.App.3d 1, 11-16.) Since that decision, two appellate courts have
mentioned the issue without deciding it. (California Casualty Management Co. v.
Martocchio
(1992) 11 Cal.App.4th 1527, 1530, fn. 3; Kahn v. Bower (1991) 232
Cal.App.3d 1599, 1615-1616.)

Although the Ninth Circuit in Masson v. New Yorker Magazine, Inc. (9th
Cir. 1989) 895 F.2d 1535, 1547-1548, appears to have assumed that section
1021.7 makes attorneys’ fees available in libel and slander actions generally, the
court did not recognize the issue we address in this case, note the authority
contradicting its assumption (Planned Protective Services, Inc. v. Gorton, supra,
200 Cal.App.3d 1, 11-16), or actually award fees under section 1021.7.
5
“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 . . . .” (§ 1021.)
4


Accordingly, the plain language rule does not dispose of this case. We
therefore consider the legislative history of section 1021.7 in order to identify the
construction that comports most closely with the Legislature’s actual intent. (See
Day v. City of Fontana, supra, 25 Cal.4th 268, 272; see also Palmer v. GTE
California, Inc. (2003) 30 Cal.4th 1265, 1271 [“If the statutory language on its
face answers [a] question, that answer is binding unless we conclude the language
is ambiguous or it does not accurately reflect the Legislature’s intent.”].) In fact,
the statute’s well documented history leaves no serious doubt that the Legislature
intended to adopt a rule that would affect only cases involving peace officers.
Senator John Doolittle introduced Senate Bill No. 229 (1981-1982 Reg.
Sess.) on February 5, 1981, at the request of the Peace Officers Research
Association of California (PORAC), in order to deter unwarranted lawsuits against
peace officers and to reimburse their public employers for the cost of defending
such lawsuits. (Sen. Com. on Judiciary, Background Information on Sen. Bill No.
229 (1981-1982 Reg. Sess.) Mar. 10, 1981, p. 1.) As introduced, the bill covered
“any action brought against a peace officer . . . .” Subsequent amendments to the
bill on April 20, 1981, and May 28, 1981, clarified the Legislature’s intent to reach
only “actions for damages arising out of the performance of a peace officer’s
duties” that have not been “filed or maintained in good faith and with reasonable
cause.”
Assemblywoman Maxine Waters added the words, “or in an action for libel
or slander brought pursuant to Section 45 or 46 of the Civil Code,” on the floor of
the Assembly, immediately before Senate Bill No. 229 passed that house. (5
Assem. J. (1981-1982 Reg. Sess.) pp. 8101, 8150.) Consequently, the various
reports on the bill prepared for Senate and Assembly committees do not discuss
the amendment. The amendment is discussed, however, in letters to the Governor
by the bill’s Senate sponsor and others, urging that the legislation be signed or
5
vetoed. These letters consistently explain that the amendment was offered to
make the bill reciprocal, by providing that anyone defending against a frivolous
action for libel or slander brought by a peace officer would also be able to receive
an award of attorney fees. (See Sen. John Doolittle, letter to Governor Edmund
Brown, Sept. 22, 1981, p. 1; see also Joe Aceto, Director, Legislative Division,
POARC, letter to Governor Edmund Brown, Sept. 22, 1981, p. 2.) The American
Civil Liberties Union (ALCU), which opposed the bill, nevertheless recounted the
amendment’s history in precisely the same way. 6 These statements about pending
legislation are entitled to consideration to the extent they constitute “a reiteration
of legislative discussion and events leading to adoption of proposed amendments
rather than merely an expression of personal opinion.” (California Teachers Assn.
v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 700.)
In summary, while the Legislature wished to make section 1021.7
reciprocal, in the sense of deterring baseless actions for libel or slander filed
against citizens in retaliation for complaints about the manner in which peace
officers have performed their duties, nothing in the legislative history suggests a

6
The ACLU wrote: “We should also point out another effect of [Senate Bill
No.] 229. When it became clear that the bill could not be stopped in the
Legislature, [Assemblywoman] Maxine Waters urged the author to take certain
amendments providing defense attorneys fees where defamation actions are
brought without reasonable cause and not in good faith. While we deplore the
precedent that [Senate Bill No.] 229 sets, if defense attorneys fees are to become
state policy, it seems clear that the use of defamation lawsuits as a political
weapon should bear the same price. [¶] Where, e.g., the NAACP was sued by
Oakland police officers for their public condemnation of police shootings, or
where a former juror was sued for writing the Mayor of Culver City about the
conduct of one of its officers in dealing with Hispanics, attorneys fees should be
available. In each case the speech was clearly privileged, and the only reason for
the defamation action was to punish the defendants, to shut them up, and to
discourage like-minded persons from speaking out.” (Brent Barnhart and Beth
Meador, ACLU Legislative Advocates, letter to Governor Edmund Brown, Sept.
23, 1981, pp. 1-2.)
6


broader intent to make attorneys’ fees available in libel and slander actions
generally.7
As additional support for interpreting section 1021.7 to authorize attorneys’
fees only in actions involving peace officers, plaintiff cites a variety of documents
written by members of the Legislature, and by the Legislative Counsel, years after
section 1021.7 took effect. The authors of these documents explain the origin and
meaning of the section’s reference to actions for libel and slander consistently with
the previously mentioned letters to Governor Brown, and conclude that the section
affects only actions involving peace officers. We do not, however, attribute any
weight to these later writings because they have little probative value on the
Legislature’s contemporaneous understanding of the bill that became section
1021.7.
For the same reason, we attach little value to the Legislature’s subsequent
failure pass a bill (Assem. Bill No. 95 (1983-1984 Reg. Sess.)) that would have
amended section 1021.7 to clarify its reference to actions for libel and slander.8
We have repeatedly observed that the Legislature’s failure to enact a proposed
amendment to an existing statutory scheme offers only limited guidance, if any,
concerning the Legislature’s original intent. (E.g., People v. Mendoza (2000) 23
Cal.4th 896, 921; Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721, 735, fn. 7.)

7
Contradicting the legislative history, dictum in Planned Protective Services
v. Gorton, supra, 200 Cal.App.3d 1, suggests that section 1021.7 applies only to
actions in which a peace officer or a peace officer’s public employer is a
defendant. (Id., at p. 15.) In this one respect only, we disapprove Planned
Protective Services v. Gorton
, supra.
8
Assembly Bill No. 95 (1983-1984 Reg. Sess.) would have added the
following, italicized language to section 1021.7: “any action for libel or slander
brought by or on behalf of a peace officer or a public entity employing a peace
officer
pursuant to Section 45 or 46 of the Civil Code based upon a statement or
publication alleging that a peace officer has not properly performed his or her
duties
. . . .” (Italics added.)
7


Here, to undertake the problematic exercise of inferring legislative intent from
subsequent, failed legislation seems especially inappropriate because the original
intent behind section 1021.7 is clear. 9
Defendant argues that to interpret section 1021.7 as affecting only actions
involving peace officers would render surplusage the statutory language referring
to “action[s] for libel or slander.” The argument lacks merit. To be sure, even
without that language, the section would authorize a court to award attorneys’ fees
“[i]n any action for damages”—including presumably an action for libel or
slander—“arising out of the performance of a peace officer’s duties, [and] brought
against a peace officer . . . or against a public entity employing a peace officer
. . . .” (§ 1021.7, italics added.) As the legislative history shows, however, the
additional language about “action[s] for libel or slander” was thought necessary to
make the statute reciprocal, in part, by permitting the recovery of attorneys’ fees
by citizens sued for libel or slander by peace officers in retaliation for complaining
about the manner in which peace officers had performed their duties. Thus, to
interpret section 1021.7 as affecting only actions involving peace officers does not
render surplusage the section’s reference to “action[s] for libel or slander.”
For these reasons, we conclude that section 1021.7 authorizes courts to
award attorneys’ fees in actions for libel or slander only when a peace officer or an
officer’s public employer is a party, and when the action arises out of the
performance of an officer’s duties. Section 1021.7 does not authorize fee awards
in libel and slander actions generally. In holding to the contrary, the Court of
Appeal erred.

9
Plaintiff’s motion for judicial notice of the legislative history of Assembly
Bill No. 95 (1983-1984 Reg. Sess.) is granted. As explained above, however, we
do not find the legislative history of that unenacted bill useful in construing
section 1021.7.
8


III. DISPOSITION
The decision of the Court of Appeal is reversed.
WERDEGAR, J.
WE CONCUR:
GEORGE, C.J.
KENNARD, J.
BAXTER, J.
CHIN, J.
BROWN, J.
MORENO, J.
9
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Martin v. Szeto
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted

XXX 94 Cal.App.4th 687
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S103417
Date Filed: February 19, 2004
__________________________________________________________________________________

Court:

Superior
County: San Francisco
Judge: A. James Robertson II

__________________________________________________________________________________

Attorneys for Appellant:

Law Offices of Mattaniah Eytan, Mattaniah Eytan, Eric Schenk and Andrea R. Widburg for Defendants
and Appellants.

__________________________________________________________________________________

Attorneys for Respondent:

Craig K. Martin, in pro. per.; and Melissa L. Foster for Plaintiff and Respondent.


10

Counsel who argued in Supreme Court (not intended for publication with opinion):


Mattaniah Eytan
Law Offices of Mattaniah Eytan
21 Tamal Vista Boulevard, Suite 219
Corte Madera, CA 95925
(415) 399-1000

Craig K. Martin
Law Offices of Craig K. Martin
21 Columbus Ave., #229
San Francisco, CA 94111
(415) 245-2300
11


Opinion Information
Date:Docket Number:
Thu, 02/19/2004S103417

Parties
1Martin, Craig K (Plaintiff and Respondent)
Represented by Craig Kenneth Martin
Law Offices of Craig K. Martin
21 Columbus Avenue # 229
San Francisco, CA

2Szeto, Richard (Defendant and Appellant)
Represented by Eric David Schenk
Law Offices of Mattaniah Eytan
21 Tamal Vista Blvd., Suite 219
Corte Madera, CA

3Szeto, Richard (Defendant and Appellant)
Represented by Mattaniah Eytan
Law Offices of Mattaniah Eytan
21 Tamal Vista Blvd., Suite 219
Corte Madera, CA

4Lincoln, Anthony (Defendant and Appellant)
Represented by Eric David Schenk
Law Offices of Mattaniah Eytan
21 Tamal Vista Blvd., Suite 219
Corte Madera, CA

5Lincoln, Anthony (Defendant and Appellant)
Represented by Mattaniah Eytan
Law Offices of Mattaniah Eytan
21 Tamal Vista Blvd., Suite 219
Corte Madera, CA


Disposition
Feb 19 2004Opinion: Reversed

Dockets
Jan 7 2002Petition for review filed
  By Respondent {Craig K. Martin} in pro per
Jan 8 2002Record requested
 
Jan 9 2002Received Court of Appeal record
  file jacket/briefs/accordian file
Jan 24 2002Answer to petition for review filed
  by counsel for appellants Richard Szeto et al.
Feb 20 2002Petition for Review Granted (civil case)
  Votes: George, CJ., Kennard, Baxter, Werdegar, Chin and Moreno, JJ.
Mar 13 2002Certification of interested entities or persons filed
  by respondent Craig Kenneth Martin.
Mar 20 2002Request for extension of time filed
  respondent asking to April 22, 2002 to file opening brief on the merits. **ok to grant - order being prepared**
Mar 25 2002Request for extension of time filed
  to and including April 22, 2002 for respondent to file opening brief on the merits. No further extensions are contemplated.
Apr 22 2002Opening brief on the merits filed
  by respondent.
May 10 2002Request for extension of time filed
  by counsel for appellants (Richard Szeto, et al,.) requesting extension to June 21, 2002 to file the answer brief on the merits.
May 14 2002Extension of time granted
  to and including June 21, 2002 for appellants to file the answer brief on the merits. No further extensions are contemplated.
Jun 13 2002Answer brief on the merits filed
  by counsel for appellants Richard Szeto and Anthony Lincoln.
Jul 2 2002Request for extension of time filed
  by counsel for respondent asking to July 15, 2002 to file reply brief. *granted - order being prepared*
Jul 3 2002Extension of time granted
  to and including July 15, 2002 for respondent to file the reply brief. No further extensions are contemplated.
Jul 15 2002Reply brief filed (case fully briefed)
  by respondent.
Apr 30 2003Change of Address filed for:
  Craig K. Martin (respondent). New address: 21 Columbus Avenue, Suite 229, S.F., CA 94111.
Oct 30 2003Case ordered on calendar
  12-3-03, 9am, San Jose
Dec 3 2003Cause argued and submitted
 
Dec 4 2003Filed:
  by counsel for aplts. (Szeto and Lincoln) Motion to Augment Record and Request for Judicial Notice.
Feb 19 2004Opinion filed: Judgment reversed
  OPINION BY: Werdegar, J. -- joined by: George, C.J., Kennard, Baxter, Chin, Brown, Moreno, JJ.
Mar 23 2004Remittitur issued (civil case)
 
Mar 30 2004Received:
  Receipt for remittitur - from CA1/4.

Briefs
Apr 22 2002Opening brief on the merits filed
 
Jun 13 2002Answer brief on the merits filed
 
Jul 15 2002Reply brief filed (case fully briefed)
 
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website