Nothing in Section 1038 Prohibits A Lower Court From Considering A Postjudgment Fees Motion.
Plaintiff in Burkot v. County of Los Angeles, Case No. B306244 (2d Dist., Div. 2 Sept. 14, 2022) (unpublished) lost a summary judgment in a dangerous condition intersection case after County’s objections to plaintiff’s opposing expert declarations were sustained to a large degree. In its summary judgment motion, County moved to recover CCP § 1038 attorney’s fees, but the lower court did not rule on that request. County then brought a postjudgment fee motion, with Plaintiff arguing it was untimely (had to be brought before entry of judgment) and wrong on the merits (because Plaintiff had a good faith reasonable belief that the case was potentially meritorious). The lower court denied the motion on the merits.
The 2/2 DCA affirmed the fee denial. Section 1038 allows a court in an action under the Tort Claims Act to assess attorney’s fees for a plaintiff losing a summary judgment where that was a lack of reasonable cause a good faith belief that there was a legally and factually justifiable controversy when filing a complaint. Reasonable cause is akin to a malicious prosecution “probable cause” standard, an objective one. Good faith belief involves a factual inquiry into the plaintiff’s subjective state of mind. Because the trial judge credited plaintiff’s attorney’s declaration on good faith (citizen complaints about the crosswalk) and reasonableness (there were enough nuances on the merits), the appellate court found substantial evidence for the lower court’s conclusions. On the timeliness issue, County did raise it in the summary judgment paperwork, but the trial judge did not consider it, not to mention the appellate court could find no authority prohibiting consideration of such a motion at a postjudgment stage—so the timeliness ruling by the lower court was upheld also.
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