Special Fee Shifting Statute: $22,139.75 Fee Award To State Parks Under CCP § 1038 Reversed On Appeal Because Plaintiff’s Suit Did Not Lack Reasonable Cause

Case Law Was Not Clear Cut That A Stairway Was A Trail For Governmental Trail Immunity.

            This next case involved a plaintiff injuring herself on a state park stairway near the Bootjack Trial in Mt. Tamalpais State Park (which happens to be situated in Marin County, a Bay Area county).  She sued the State Parks for premises liability, but defendant won summary judgment based on trail immunity.  State Parks moved to recoup attorney’s fees and defense costs under Government Code section 1038, a special fee-shifting statute encouraged to discourage frivolous suits against governmental entities.  However, the government must prove a lack of reasonable cause as to plaintiff’s case, a determination which is judged objectively and is reviewed under the de novo standard on appeal.

            The lower court in Lee v. Dept. of Parks and Recreation, Case No. A154021 (1^st Dist., Div. 4 July 31, 2019/posted Aug. 1, 2019) (published) awarded State Parks around 50% of the requested amount in its section 1038 fees/defense costs motion, namely, $22,139.75.  Plaintiff appealed.  The appellate court affirmed the summary judgment ruling but reversed the fees/defense costs award.

            The reason was that there was no showing that plaintiff’s case lacked reasonable cause.  After all, the appellate court surveyed case law and then concluded the issue was not clear cut, with no prior case deciding whether stairways are trails.  With that being the case, a critical element of section 1038 fee/costs exposure was missing.