First District, Division 4 So Decides, Also Denying Fees on a Different Theory Raised After Losing the § 1038 Request—Counseling to Seek Fees on Multiple Grounds the First Time Around.
State entities eventually defended against a civil rights claim brought by a peace officer organization under 42 U.S.C. § 1983. State entities then moved to recover $370,529.29 in attorney’s fees under Code of Civil Procedure section 1038, which permits trial courts to award defendants their costs and fees in defending against unmeritorious and frivolous claims brought under the California Tort Claims Act. That request was denied, so state entities made a second request under 42 U.S.C. § 1988, which allows fee recovery in civil rights cases to prevailing defendants where plaintiff’s action was frivolous, unreasonable, or without foundation. That request, too, was denied. State entities appealed.
Their appeals were unsuccessful.
In California Correctional Peace Officers Assn. v. Virga, Case No. A123989 (1st Dist., Div. 4 Jan. 15, 2010) (certified for publication), the appellate decision decided: (1) a section 1983 civil rights action is not a “civil proceeding under the California Tort Claims Act” for purposes of a fee award under section 1038; and (2) prevailing defendants were obligated to put forth all of their reasons for an award of attorney’s fees when they made their initial request, not attempting to use a later motion for renewal as a device to get a “second bite at the apple.” In doing so, the Court of Appeal has a nice discussion on motions for reconsideration and motions for renewal that is must reading for all litigators who contemplate the filing of such motions.