Section 1038 Deadlines Are Not Jurisdictional In Nature.
Code of Civil Procedure section 1038 allows an award of defense costs to a public entity that prevails on a frivolous lawsuit by means of a dispositive motion (such as a motion for summary judgment) if the public entity so moves “before the discharge of the jury or entry of judgment.”
In Gregg v. California Highway Patrol, Case No. E066241 (4th Dist., Div. 2 May 11, 2018) (unpublished), defendant California Highway Patrol “defensed” plaintiff’s personal injury negligence suit, arising from a traffic break, through a summary judgment motion resulting in an entry of judgment. After entry of the judgment, defendant moved for recovery of defense costs, which plaintiff opposed on the basis it was untimely filed. The trial court granted the motion and entered a separate costs judgment.
Plaintiff appealed, principally arguing the motion was untimely. The appellate court agreed, but affirmed nonetheless.
Defendant tried to convince the 4/2 DCA panel that the motion was timely because the determination was not made until after entry of the later costs judgment. That argument was unsuccessful, because the original judgment disposed of all legal issues except for the later fixing of costs such that the first judgment was the one that mattered for deadline purposes.
However, plaintiff was unable to overturn the defense costs award because the appellate court, while noting the incongruent timing issue (given that no one knows how a dispositive motion will turn out such that a contemporaneous motion before a merits determination seems odd timed from a pragmatic perspective), held that the section 1038 deadline was not jurisdictional in nature and that a costs motion could be entertained in the absence of prejudice. No prejudice was shown in this situation, leading to an affirmance on appeal.