Filed 10/17/17 CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

JOHN PD DOE,

Plaintiff and Appellant,

v.

SAN DIEGO-IMPERIAL COUNCIL et al.,

Defendants and Respondents.

 D070414

 (Super. Ct. No. 37-2013-00029313-

 CU-PO-NC)

APPEAL from an order of the Superior Court of San Diego County, 

Timothy M. Casserly, Judge. Reversed.

Manly Stewart & Finaldi, John C. Manly, Vince W. Finaldi, Sky L. Daley; Esner, 

Chang & Boyer, Stuart B. Esner, Andrew N. Chang, Holly N. Boyer and Joseph S. 

Persoff for Plaintiff and Appellant.

White & Amundson, Daniel M. White and Rebecca D. Lack for Defendants and 

Respondents.

I.

INTRODUCTION

Plaintiff John PD Doe was sexually abused by a Boy Scout master beginning in 

1998 and continuing for a number of years at a ranch owned and operated by the 
2

defendants, San Diego-Imperial Council and Boy Scouts of America (the defendants). In 

2013, many years after the abuse and after Doe obtained psychological therapy, he filed 

this action against the defendants. The defendants ultimately demurred to Doe's 

complaint on the ground that he failed to file a certificate of merit, as required by Code of 

Civil Procedure section 340.1 (section 340.1), which applies to actions to recover 

damages for childhood sexual abuse. The trial court sustained the defendants' demurrer 

on this ground, without leave to amend. Doe appealed the trial court's judgment, and this 

court affirmed the judgment in favor of the defendants in Doe v. San Diego-Imperial 

Council (2015) 239 Cal.App.4th.81 (Doe I).

Following the issuance of the remittitur, the defendants moved for an award of 

attorney fees with respect to the fees incurred in defendant Doe's appeal. The defendants 

sought attorney fees pursuant to subdivision (q) of section 340.1. That provision 

provides that at the conclusion of litigation involving childhood sexual abuse, if the 

litigation has come to a "favorable conclusion . . . with respect to any defendant" as to 

whom the plaintiff was required to file a certificate of merit, either the defendant or the 

court may verify the plaintiff's compliance with the certificate of merit requirement. If 

the court finds that the plaintiff failed to comply with the certificate of merit requirement, 

the court may award attorney fees to the defendant for whom the certificate of merit 

requirement was not met. (§ 340.1, subd. (q).)

The trial court awarded the defendants the fees that they requested without 

analyzing the statutory provision or stating the court's reasoning as to why such fees were 

appropriate.
3

Doe appeals from the trial court's order awarding the defendants attorney fees 

resulting from the prior appeal. Doe contends that section 340.1, subdivision (q) was 

designed to permit an award of attorney fees only in situations in which there is some 

indication that the plaintiff's claim of sexual abuse is without merit, such that the 

conclusion of the litigation may be deemed to constitute a " [']favorable conclusion of the 

litigation with respect to['] " the defendants for whom a certificate of merit was filed or 

should have been filed. Doe asserts that in this case, where the trial court acknowledged 

that Doe's claim was not frivolous, and there was no indication that the claim lacked 

merit, the defendants were not eligible for an award of attorney fees pursuant to section 

340.1, subdivision (q).

The defendants contend that they are entitled to attorney fees pursuant to section 

340.1, subdivision (q) because they obtained a dismissal of the action, and, as a result, 

they are prevailing parties and are entitled to attorney fees. They assert that a "favorable 

conclusion" is not a prerequisite to an award of attorney fees under section 340.1, 

subdivision (q), and that even if a "favorable conclusion" is a prerequisite, the dismissal 

of Doe's complaint constitutes such a "favorable conclusion."

We conclude that a defendant is eligible for an award of attorney fees pursuant to 

section 340.1, subdivision (q) only where the litigation has resulted in a "favorable 

conclusion" for that defendant, and that a "favorable conclusion" requires a result that is 

reflective of the merits of the litigation. In this case, the dismissal of Doe's action was 

procured as a result of a procedural defect that does not reflect on the merits of the action. 

As a result, there was no "favorable conclusion" with respect to the defendants, and they 
4

are therefore not eligible to be awarded their attorney fees pursuant to section 340.1, 

subdivision (q). We therefore reverse the order of the trial court awarding the defendants 

attorney fees.

II.

FACTUAL AND PROCEDURAL BACKGROUND1

Plaintiff John Doe was a Boy Scout who attended the Mataguay Scout Ranch (the 

Ranch) where Glenn Jordan was an employee. The Ranch is owned and operated by 

defendants San Diego-Imperial Council and Boy Scouts of America. As alleged by Doe, 

beginning in the summer of 1998, when Doe was 14 years old, and continuing until 

approximately 2000, Jordan repeatedly sexually abused Doe. According to Doe, the 

defendants knew that Jordan had a propensity to molest children, but they failed to warn 

Doe or his family, or other camp attendees.

In 2003, when Doe was approximately 19 or 20 years old, the defendants provided 

counseling for Doe because of the abuse he had suffered. Through the counseling 

process, Doe realized that the sexual abuse had caused him to suffer emotional and 

psychological problems.

In November 2012, Doe retained counsel. On January 9, 2013, Doe filed this 

action against the defendants alleging various causes of action. After the defendants 

demurred, Doe filed a first amended complaint. The defendants again demurred and 

moved to strike the complaint, arguing, among other things, that the entire first amended 

 

1 We summarize these facts from the factual background provided in this court's 

opinion in Doe I, supra, 239 Cal.App.4th at p. 85.
5

complaint was subject to demurrer or should be stricken because Doe had failed to file 

certificates of merit, as required under section 340.1, subdivision (g). The trial court 

sustained the demurrer without leave to amend on this ground and concluded that the 

motion to strike was moot. After hearing oral argument, the trial court confirmed its 

ruling and later entered judgment in favor of the defendants.

Doe appealed the trial court's judgment, arguing that Insurance Code section

11583 tolled the statute of limitation for his claims. According to Doe, although section 

340.1 requires any plaintiff who is 26 years of age or older at the time the action is filed 

to file certificates of merit together with the complaint, and even though he was 

chronologically 29 years old when he filed his lawsuit, under the tolling provisions 

of Insurance Code section 11583, he should have been considered to have been only 20 

years old at the time he filed his complaint. (Doe I, supra, 239 Cal.App.4th at p. 85.) 

Doe asserted that the tolling provision of Insurance Code section 11583 applied to him as 

a result of the defendants' failure to notify him in writing about the statute of limitations 

when the defendants provided him counseling for the emotional suffering that he endured 

as a result of the sexual abuse. (Doe I, supra, at p. 88.) In the prior appeal in this case, 

addressing what was an issue of first impression, this court ultimately disagreed with 

Doe's legal argument and affirmed the trial court's judgment, but in doing so, noted that 

the statutory framework might prevent plaintiffs from prosecuting even meritorious 

claims. (Id. at pp. 87, 90, 92.)

After the judgment became final, the defendants moved for an award of the 

attorney fees that they had incurred on appeal, pursuant to section 340.1, subdivision (q)'s 
6

attorney fees provision. The trial court awarded the defendants the fees that they 

requested, without explanation. Doe filed a timely appeal from the trial court's order 

granting the defendant's motion for attorney fees.

III.

DISCUSSION

Section 340.1 sets forth procedural guidelines that must be followed when a 

plaintiff seeks to pursue a childhood sex abuse claim. Subdivision (g) of section 340.1 

requires that any plaintiff who is 26 years of age or older at the time the action is filed 

must file certificates of merit together with the complaint. The purpose of the certificate 

of merit requirement is to reduce the filing of frivolous claims by imposing a pleading 

hurdle. (Jackson v. Doe (2011) 192 Cal.App.4th 742, 752 (Jackson).)

Subdivision (q) of section 340.1 includes the provision's only reference to attorney 

fees. That provision states in full:

"Upon the favorable conclusion of the litigation with respect to any 

defendant for whom a certificate of merit was filed or for whom a 

certificate of merit should have been filed pursuant to this section, 

the court may, upon the motion of a party or upon the court's own 

motion, verify compliance with this section by requiring the attorney 

for the plaintiff who was required by subdivision (h) to execute the 

certificate to reveal the name, address, and telephone number of the 

person or persons consulted with pursuant to subdivision (h) that 

were relied upon by the attorney in preparation of the certificate of 

merit. The name, address, and telephone number shall be disclosed 

to the trial judge in camera and in the absence of the moving party. 

If the court finds there has been a failure to comply with this section, 

the court may order a party, a party's attorney, or both, to pay any 
7

reasonable expenses, including attorney's fees, incurred by the 

defendant for whom a certificate of merit should have been filed."2

The parties dispute the proper interpretation of subdivision (q) of section 340.1. 

The defendants contend that a defendant may obtain an attorney fee award any time a 

plaintiff has failed to comply with the certificate of merit requirement set forth in 

subdivision (h) of section 340.1. Doe contends that a defendant is eligible to obtain 

 

2 Subdivision (h) of section 340.1, as referenced by subdivision (q), provides:

"(h) Certificates of merit shall be executed by the attorney for the 

plaintiff and by a licensed mental health practitioner selected by the 

plaintiff declaring, respectively, as follows, setting forth the facts 

which support the declaration:

"(1) That the attorney has reviewed the facts of the case, that the 

attorney has consulted with at least one mental health practitioner 

who is licensed to practice and practices in this state and who the 

attorney reasonably believes is knowledgeable of the relevant facts 

and issues involved in the particular action, and that the attorney has 

concluded on the basis of that review and consultation that there is 

reasonable and meritorious cause for the filing of the action. The 

person consulted may not be a party to the litigation.

"(2) That the mental health practitioner consulted is licensed to 

practice and practices in this state and is not a party to the action, 

that the practitioner is not treating and has not treated the plaintiff, 

and that the practitioner has interviewed the plaintiff and is 

knowledgeable of the relevant facts and issues involved in the 

particular action, and has concluded, on the basis of his or her 

knowledge of the facts and issues, that in his or her professional 

opinion there is a reasonable basis to believe that the plaintiff had 

been subject to childhood sexual abuse.

"(3) That the attorney was unable to obtain the consultation required 

by paragraph (1) because a statute of limitations would impair the 

action and that the certificates required by paragraphs (1) and 

(2) could not be obtained before the impairment of the action. If a 

certificate is executed pursuant to this paragraph, the certificates 

required by paragraphs (1) and (2) shall be filed within 60 days after 

filing the complaint."
8

attorney fees only if the plaintiff failed to comply with the certificate of merit 

requirement and the defendant obtained a favorable conclusion in the litigation.

The defendants contend that even if Doe is correct that the defendant must have 

obtained a favorable conclusion in the litigation in order for that defendant to be eligible 

for an award of attorney fees, this matter was concluded in their favor when the case was 

dismissed. Doe counters that the language used in section 340.1, subdivision (q) has 

been given specialized meaning by a court that construed the identical phrase in a similar 

statute involving claims for malpractice, and that this specialized meaning requires that 

the lawsuit have been concluded favorably for the defendants on the merits, rather than 

on mere procedural grounds.

A. Statutory interpretation

"Our primary task in interpreting a statute is to determine the Legislature's intent, 

giving effect to the law's purpose. [Citation.] We consider first the words of a statute, as 

the most reliable indicator of legislative intent. [Citation.] ' " 'Words must be construed 

in context, and statutes must be harmonized, both internally and with each other, to the 

extent possible.' [Citation.] Interpretations that lead to absurd results or render words 

surplusage are to be avoided." ' " (Tuolumne Jobs & Small Business Alliance v. Superior 

Court (2014) 59 Cal.4th 1029, 1037.)

To the extent that the statutory language is ambiguous, "we may resort to extrinsic 

sources, including the ostensible objects to be achieved and the legislative history." (Day 

v. City of Fontana (2001) 25 Cal.4th 268, 272.) "If the statutory language permits more 

than one reasonable interpretation, courts may consider other aids, such as the statute's 
9

purpose, legislative history, and public policy." (Coalition of Concerned Communities, 

Inc. v. City of Los Angeles (2004) 34 Cal.4th 733, 737; accord, Imperial Merchant 

Services, Inc. v. Hunt (2009) 47 Cal.4th 381, 388.) Further, a "statute's every word and 

provision should be given effect so that no part is useless, deprived of meaning or 

contradictory. Interpretation of the statute should be consistent with the purpose of the 

statute and statutory framework." (Fireman's Fund Ins. Co. v. Workers' Comp. Appeals 

Bd. (2010) 189 Cal.App.4th 101, 109–110.) " ' "An interpretation that renders related 

provisions nugatory must be avoided [citation]; each sentence must be read not in 

isolation but in the light of the statutory scheme [citation]; and if a statute is amenable to 

two alternative interpretations, the one that leads to the more reasonable result will be 

followed." ' " (People v. Kirk (2006) 141 Cal.App.4th 715, 720–721.)

B. Application

1. The Legislature intended to provide for an award of attorney fees to a 

defendant only "[u]pon the favorable conclusion of the litigation" with 

respect to that defendant

The parties disagree as to the circumstances under which a defendant is eligible to 

be awarded attorney fees pursuant to subdivision (q) of section 340.1.3 Doe contends 

 

3 For ease of reference, we repeat the text of this subdivision here:

"Upon the favorable conclusion of the litigation with respect to any 

defendant for whom a certificate of merit was filed or for whom a 

certificate of merit should have been filed pursuant to this section, 

the court may, upon the motion of a party or upon the court's own 

motion, verify compliance with this section by requiring the attorney 

for the plaintiff who was required by subdivision (h) to execute the 

certificate to reveal the name, address, and telephone number of the 

person or persons consulted with pursuant to subdivision (h) that 
10

that a defendant may be awarded attorney fees "only if it is discovered after the case 

concludes with a determination on the merits in favor of the defendant that the plaintiff 

did not comply with the certificate of merit requirement."

The defendants contend that the sentence that refers to attorney fees should be 

considered to be separate from the other two sentences in subdivision (q), such that there 

is no need for a party to establish that the party obtained a "favorable conclusion" in order 

to be eligible for an award of attorney fees. Specifically, the defendants argue:

"Subdivision (q) consists of three sentences. The first sentence deals 

with a motion to compel disclosure of the name and contact 

information of the person relied upon in preparing the certificate of 

merit. This motion is to be made 'upon the favorable conclusion of 

the litigation.' The second sentence states that any such disclosure 

should be made to the judge in camera. Th[e] third sentence reads 

as follows:

"If the court finds there has been a failure to comply with this 

section, the court may order a party, a party's attorney, or both, to 

pay any reasonable expenses, including attorney's fees, incurred by 

the defendant for whom a certificate of merit should have been filed. 

(Civ. Proc. Code, § 340.l, subd. (q).) 

"Nothing in this third sentence says that a 'favorable conclusion' is 

required for the court to award attorney's fees and no case law 

supports this premise."

 

were relied upon by the attorney in preparation of the certificate of 

merit. The name, address, and telephone number shall be disclosed 

to the trial judge in camera and in the absence of the moving party. 

If the court finds there has been a failure to comply with this section, 

the court may order a party, a party's attorney, or both, to pay any 

reasonable expenses, including attorney's fees, incurred by the 

defendant for whom a certificate of merit should have been filed." 

(§ 340.1, subd. (q).)
11

We agree with Doe that the more reasonable interpretation of subdivision (q) is 

that all three sentences placed in that subdivision are intended to relate to each other. 

Although it is true that the third sentence in subdivision (q), which refers to attorney fees, 

does not independently include the phrase "favorable conclusion," that phrase is included 

in the first sentence of the subdivision. All three of these sentences involve what may 

occur when the litigation has been concluded in a defendant's favor. All three sentences 

should be read together. The meaning and impact of doing so is that in a case where the 

litigation terminates in a defendant's favor, the defendant or the court may move to verify 

the plaintiff's certificate of merit, and, if the court finds a failure to comply with 

subdivision (q)'s certificate of merit requirement, the court may award the defendant his 

or her reasonable expenses, including attorney fees.

The defendants' position, that each sentence of subdivision (q) in section 340.1 

should be read independently from the other sentences in that subdivision makes little 

sense, given the Legislature's use of the subdivision structure in section 340.1. The 

organizing structure of the provision, including its framing of a variety of matters into 

discrete subdivisions, should be given some effect with respect to the meaning to be 

given to the language that appears in those subdivisions. It is patently more reasonable to 

conclude that sentences that are placed together in a single subdivision should be 

considered to relate to each other, as opposed to being wholly independent from one 

another.

Indeed, others have adopted our interpretation of subdivision (q). In the California 

Judges Benchbook, the following explanation of this provision is provided:
12

"On the favorable conclusion of the litigation with respect to any 

defendant, the judge may, on a party's motion or on the judge's own 

motion, verify compliance with the requirements of CCP §340.1 by 

requiring the plaintiff's attorney to reveal the name, address, and 

telephone number of each person the attorney consulted under CCP 

§340.1(h) and that the attorney relied on in preparing the certificate 

of merit. CCP §340.1(q). This information must be disclosed to the 

judge in chambers and in the absence of the moving party. If the 

judge finds that the attorney failed to comply with the statutory 

requirements, the judge may order the plaintiff and/or the attorney to 

pay any reasonable expenses, including attorney's fees, the defendant 

incurred. CCP §340.1(q). A violation of the statutory requirements 

may constitute unprofessional conduct and may be grounds for 

discipline of the plaintiff's attorney. CCP §340.1(k)." (Cal. Judges

Benchbook: Civil Proceedings Before Trial (CJER 2008) Attacks on 

Pleadings, § 12.189, p. 111.)

Not only does the structure of subdivision (q) favor this interpretation, but a 

review of other subdivisions of section 340.1 also supports an interpretation that allows 

for an award of attorney fees only upon a finding that the litigation has been concluded in 

a defendant's favor. Specifically, the Legislature placed the attorney fees reference in 

subdivision (q), together with the reference to "[u]pon the favorable conclusion of the 

litigation with respect to any defendant," and chose not to include a reference to an award 

of attorney fees in subdivision (l), which is the subdivision that states that the "failure to 

file certificates in accordance with this section shall be grounds for a demurrer pursuant 

to Section 430.10 or a motion to strike pursuant to Section 435." If the Legislature had 

intended to authorize an award of attorney fees to a defendant in a situation in which a 

case is dismissed as a result of a plaintiff's failure to file a certificate of merit as required 

by section 340.1, one would expect that the Legislature would have included language in 

subdivision (l) to expressly provide that a defendant is eligible to obtain an attorney fee 
13

award in connection with a successful demurrer or motion to strike. However, it did not 

do so.

In addition, our interpretation of the statute would effectuate the discernable 

purpose of the statute—i.e., a reduction in the filing of frivolous claims. (See Jackson, 

supra, 192 Cal.App.4th at p. 752 ["The legislative materials indicate that the purpose of 

the certificates of merit requirements is to impose 'pleading hurdles aimed at reducing 

frivolous claims' "].) The attorney fee provision in subdivision (q) of section 240.1 is not 

a reciprocal provision; it provides for only a defendant to obtain attorney fees. It thus 

appears clear that the attorney fee provision is intended to act as a deterrent to the filing 

of frivolous claims. A plaintiff risks having to pay the defendant's attorney fees upon the 

conclusion of litigation in favor of the defendant on the merits if the plaintiff fails to 

comply with the requirements regarding the filing of a certificate of merit.

The defendants' reliance on Guinn v. Dotson (1994) 23 Cal.App.4th 262 (Guinn) is 

misplaced. Guinn involved the application of Code of Civil Procedure section 411.35, 

which both parties agree imposes an identical certificate of merit requirement with 

respect to malpractice actions against certain professionals, and also provides for an 

award of attorney fees by use of language that is substantively identical to that found in 

subdivision (q) of section 340.1. (See Guinn, supra, 23 Cal.App.4th at pp. 265–266.)4

 

4 The relevant provision of Code of Civil Procedure section 411.35, subdivision (h) 

provides as follows:

"Upon the favorable conclusion of the litigation with respect to any 

party for whom a certificate of merit was filed or for whom a 

certificate of merit should have been filed pursuant to this section, 
14

In Guinn, the court sustained the defendant's demurrer without leave to amend due 

to the plaintiffs' failure to file proper certificate of merit. (Guinn, supra, 23 Cal.App.4th 

p. 266.) The court subsequently awarded the defendant attorney fees pursuant to Code of 

Civil Procedure section 411.35. However, in doing so, the court declined to award the 

defendant his paralegal fees as part of the award of attorney fees. (Guinn, supra, at p. 

266.) On appeal, the plaintiffs argued that the trial court abused its discretion in 

sustaining the defendant's demurrer to the second amended complaint without leave to 

amend and in not ruling on the plaintiff's motion to allow the late filing of a certificate of 

merit. (Ibid.) The defendant also appealed, arguing that the trial court had abused its 

discretion in refusing to award paralegal fees as part of the fee award. (Ibid.) The 

plaintiffs did not contest whether the defendant was eligible to obtain attorney fees under 

Code of Civil Procedure section 411.35 as a result of having obtained a favorable 

conclusion in the litigation. As a result, the Guinn court had no opportunity to consider 

whether the attorney fee provision in Code of Civil Procedure section 411.35 permitted 

an award of attorney fees regardless of whether the defendant obtained a favorable 

 

the trial court may, upon the motion of a party or upon the court's 

own motion, verify compliance with this section, by requiring the 

attorney for the plaintiff or cross-complainant who was required by 

subdivision (b) to execute the certificate to reveal the name, address, 

and telephone number of the person or persons consulted with 

pursuant to subdivision (b) that were relied upon by the attorney in 

preparation of the certificate of merit. The name, address, and 

telephone number shall be disclosed to the trial judge in an incamera proceeding at which the moving party shall not be present. 

If the trial judge finds there has been a failure to comply with this 

section, the court may order a party, a party's attorney, or both, to 

pay any reasonable expenses, including attorney's fees, incurred by 

another party as a result of the failure to comply with this section."
15

conclusion in the action. " ' " '[I]t is axiomatic that cases are not authority for 

propositions not considered.' " ' " (Riverside County Sheriff's Dept. v. Stiglitz (2014) 60 

Cal.4th 624, 641.)

In addition, in Guinn, the plaintiffs' attempt to comply with an alternative to the 

certificate of merit requirement was a sham. Specifically, the plaintiff had filed a "res 

ipsa certificate," which would have obviated the need for a certificate of merit under 

Code of Civil Procedure section 411.35. (Guinn, supra, 23 Cal.App.4th at p. 266.) The 

trial court determined that the statement in the certificate filed with the second amended 

complaint stated that the plaintiffs were relying solely on the doctrine of res ipsa loquitur, 

but that this statement "was in direct conflict with the allegations of the second amended 

complaint." (Ibid.)

Guinn simply does not stand for the proposition that the defendants suggest it 

does. Specifically, Guinn does not support the defendants' contention that a successful

demurrer to a complaint for failure to file the required certificate of merit is sufficient to 

entitle a defendant to an award of attorney fees pursuant to section 340.1, subdivision (q), 

irrespective of whether the litigation was "favorabl[y] conclu[ded] . . . with respect to 

[that] defendant." (§ 340.1, subd. (q).) We therefore conclude that Guinn offers no 

persuasive analysis with respect to how to interpret subdivision (q) of section 340.1, and 

it does not alter our statutory interpretation of the relevant language.
16

2. A "favorable conclusion" requires some determination on the merits of the 

action

The parties disagree as to what the phrase "[u]pon the favorable conclusion of the 

litigation with respect to any defendant" means.

The defendants argue that a "judgment of dismissal in favor of the [defendants], 

affirmed by the court of appeal, satisfies [the 'favorable conclusion'] requirement." 

(Capitalization & boldface omitted.) Doe contends that in order for there to be a 

"favorable conclusion" of litigation with respect to a defendant, there must be some 

indication that the conclusion reflects on the merits of the case, "such as a [ruling on a] 

motion for summary judgment or a jury verdict."

We begin by noting that section 340.1, subdivision (q) utilizes the "favorable 

conclusion" language, and does not refer to a "prevailing party" or the "prevailing 

defendant." Our review of the Code suggests that this "favorable conclusion" language is 

found only in section 340.1, subdivision (q) and in Code of Civil Procedure section 

411.35, subdivision (h), which is the provision that was at issue in Guinn, supra, 23 

Cal.App.4th 262, and which is virtually identical to subdivision (q) of section 340.1.

Importantly, another court has already interpreted the "favorable conclusion"

language in the context of Code of Civil Procedure section 411.35, subdivision (h). The 

court in Korbel v. Chou (1994) 27 Cal.App.4th 1427 (Korbel) considered whether a 

settlement between the parties constituted a "favorable conclusion" of the litigation for 

purposes of an award of attorney fees pursuant to subdivision (h) of section 411.35. The 

Korbel court noted that it could find no published opinion "addressing whether a case 
17

dismissed pursuant to a settlement is a 'favorable conclusion' "; the Korbel court therefore 

looked to authorities that examined the meaning of the phrase "favorable termination" in 

the context of a malicious prosecution action. (Korbel, supra, at p. 1430.)

The Korbel court determined that a "favorable conclusion" within the meaning of 

section 411.35, subdivision (h) "is the same as a favorable termination," and that both 

require a conclusion that is reflective of the merits of the plaintiff's action. (Korbel, 

supra, 27 Cal.App.4th at p. 1431.) "Favorable termination was defined by our Supreme 

Court over 50 years ago in Jaffe v. Stone (1941) 18 Cal.2d 146. 'The theory underlying 

the requirement of favorable termination is that it tends to indicate the innocence of the 

accused . . . . If the accused were actually convicted, the presumption of his [or her] guilt 

or of probable cause for the charge would be so strong as to render wholly improper any 

action against the instigator of the charge. . . . The same fundamental theory is applied in 

testing a dismissal or other termination without a complete trial on the merits. If it is of 

such a nature as to indicate the innocence of the accused, it is a favorable termination 

sufficient to satisfy the requirement. If, however, the dismissal is on technical grounds, 

for procedural reasons, or for any other reason not inconsistent with his [or her] guilt, it 

does not constitute a favorable termination.' " (Korbel, supra, at pp. 1431–1432.) 

Therefore, " '[i]n order for the termination of the lawsuit to be considered "favorable" to 

the malicious prosecution plaintiff, it must be reflective of the merits of the action and of 

the plaintiff's innocence of the misconduct alleged therein.' [Citation.] To determine 

whether a 'favorable termination' occurred when the 'proceeding is terminated other than 

on its merits, the reasons underlying the termination must be examined to see if it reflects 
18

the opinion of either the court or the prosecuting party that the action would not 

succeed.' " (Id. at p. 1431.)

The Korbel court noted that there are a number of reasons why "a favorable 

conclusion is the same as a favorable termination," and that it is of no consequence that 

the Legislature used the word "conclusion" in section 411.35 while the malicious 

prosecution law refers to a "termination." (Korbel, supra, 27 Cal.App.4th at p. 1431.) 

Significantly, "[t]he purpose of [section 411.35] and a malicious prosecution action are 

exactly the same. Subdivision (h)'s purpose is to provide sanctions and attorney fees for 

frivolous lawsuits. (Sen. Com. on Judiciary, Analysis of Sen. Bill No. 1718 (1987–1988 

Reg. Sess.) as introduced May 3, 1988.) The purpose behind a malicious prosecution 

action is to provide a remedy for unjustifiable lawsuits. [Citation.] In a section 411.35, 

subdivision (h) motion, the litigation must end in a 'favorable conclusion' before 

sanctions and attorney fees can be awarded. Similarly, the underlying suit in a malicious 

prosecution action must end in a 'favorable termination' or the action cannot be 

maintained. In other words, both require the litigation to end favorably before costs or 

fees can be awarded for an unjustified lawsuit." (Korbel, supra, at p. 1432.) Further, 

such a conclusion "is consistent with basic statutory interpretation." (Ibid.) " '[W]e first 

consult the words themselves, giving them their usual and ordinary meaning.' [Citation.] 

'Favorable' is defined as 'giving a result that is in one's favor'; 'conclusion' means 'the last 

part of anything: close, termination, end.' (Webster's New Internat. Dict. (3d ed. 1961) 

pp. 471 & 830.) The plain meaning of 'favorable conclusion' is the litigation ended in 
19

defendant's favor. In other words, there was a favorable termination to the litigation." 

(Ibid.)

We agree with the Korbel court's analysis and conclude that, given that section 

411.35, subdivision (h) and section 340.1, subdivision (q) use virtually identical 

language, it is appropriate to apply the Korbel court's interpretation of "favorable 

conclusion" as used in section 411.35, subdivision (h) to that same phrase as used in 

section 340.1, subdivision (q).

3. The dismissal in this case does not reflect on the merits of this 

litigation, and therefore does not constitute a "favorable conclusion"

We now consider whether the dismissal is this case reflects the opinion of either 

the court or the prosecuting party that the action would not succeed, such that the court's 

sustaining of defendants' demurrer without leave to amend may be considered a 

"favorable conclusion." The dismissal occurred as a result of the sustaining of a demurrer 

based on the existence of a procedural defect, i.e., the failure to file the requisite 

certificates of merit, and not as a result of the plaintiff or the court viewing the case as 

unmeritorious. In fact, in our prior opinion in this matter, this court noted that a dismissal 

on the basis of a failure to comply with the certificate of merit requirement does not 

necessarily indicate that a plaintiff's claims are without merit: "Even where plaintiffs 

may have meritorious claims, their failure to comply with the certificate of merit 

requirement prevents them from prosecuting their claims." (Doe I, supra, 239 

Cal.App.4th at p. 87.) Here, there is no indication in the record that the merits of Doe's 

claims were considered at all, or that the sustaining of the demurrer was the result of a 
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determination that his claims were without merit. The absence of any indication that the 

termination of this litigation is reflective of the merits of the action precludes a 

determination that the litigation was favorably concluded with respect to the defendants.

Because the dismissal of this action does not constitute a "favorable conclusion" of 

the litigation with respect to the defendants, the defendants were not eligible to obtain an 

award of attorney fees pursuant to subdivision (q) of section 340.1. The trial court 

therefore erred in awarding the defendants attorney fees under this statutory provision.

IV.

DISPOSITION

The order of the trial court awarding the defendants attorney fees is reversed. Doe 

is entitled to costs on appeal.

AARON, J.

WE CONCUR:

BENKE, Acting P. J.

DATO, J.