Special Fee Shifting Statute: Plaintiff's Counsel Obtains Reversal Of Fee Award In Favor Of L.A. Under CCP Section 1038

 

Only $6,000 At Issue, But Fee Award Overturned On Appeal.

     In Giradi & Keese v. City of Los Angeles, Case No. B229594 (2d Dist., Div. 5 Sept. 14, 2011) (unpublished), plaintiff's counsel got hit with an adverse $6,000 fee award in favor of City of Los Angeles under Code of Civil Procedure section 1038. That provision allows a trial court, in a civil proceeding under the California Tort Claims Act, to assess fees against a plaintiff if it is determined that a proceeding was not brought in good faith and with reasonable cause once a summary judgment is granted in favor of a defendant public entity.

     The appellate court reversed the award on appeal, after observing that the reasonable cause element is reviewed de novo and the good faith decision is reviewed for substantial evidence. (Austin B. v. Escondido Union School Dist., 149 Cal.App.4^th 860 (2007).)

     The problem here, after reviewing case law, was that one could not say that plaintiff's suit was brought without reasonable cause. City relied on narrow interpretations of certain cases, but they belied that a hard-and-fast rule had been adopted when it came to public entity liability for adjacent properties. Beyond that, a lack of good faith could not be inferred from plaintiff's dismissal of other public entity defendants or its willingness to settle through a dismissal without costs. Simply put, the elements for a section 1038 award did not exist in this particular cause.