Summary Judgment Affirmed, and Fees Properly Awarded For Bringing Torts Claim Without Basis.
Under Code of Civil Procedure section 1038, when a defendant in a case brought under the Torts Claim Act prevails on summary judgment, the defendant may obtain an award of attorney’s fees if the trial court determines the action was not brought in good faith and with reasonable cause.
That is exactly what happened in Bosetti v. The U.S. Life Ins. Co. in the City of N.Y., Case Nos. B206896/B208835 (2d Dist., Div. 3 July 17, 2009) (certified for publication). PVSD employee lost her disability claim by never opposing a summary judgment by the School District as to why it was named in the suit. The trial court awarded School District $83,545 in fees under section 1038. Employee did not overturn the summary judgment on appeal, such that the fee award was affirmed and the matter remanded so the lower court could consider awarding School District more fees for prevailing on appeal. Ouch! That can be the price of continued war.