Ill-Defined Planning/Discretionary Immunity Distinction And Factual Finding Of No Bad Faith Sealed The Fee Denial On Appeal.
Agee v. Oakdale Irrigation Dist., Case No. F070632 (5th Dist. Oct. 21, 2016) (unpublished) involved a mixed contract/tort multiple-claimed suit against the Oakdale Irrigation District, premised primarily on the claim that OID took two disputed parcels of land and was responsible to water irrigation repairs on piping/infrastructure. Eventually, a motion in limine based on governmental discretionary immunity resulted in a broad exclusion of evidence, with Plaintiffs resting without introducing any evidence and suffering a motion for judgment under CCP § 631.8. Defendants subsequently moved for $350,000 in attorney’s fees against Plaintiffs on three theories: (1) CCP § 1038; (2) Water Code § 23954; and (3) Trust Law (Prob. Code, § 15000 et seq.). The trial court denied the fee request, a result affirmed on appeal.
On the section 1038 fee entitlement basis, the Fifth District essentially concluded that the line between planning/discretionary acts protected by the governmental immunity was not clearly defined such that it could not shown that all of Plaintiffs’ claims were untenable (or, in the language of the statute, brought without reasonable cause or a good faith belief there was a justifiable controversy).
Water Code § 23954 has no fee entitlement basis authorizing a trial court to award attorney’s costs as fees to a party who prevailed in litigation, including a water irrigation district or its governing board members.
Finally, under the Trust Law, no equitable principles dictated a fee recovery given that the lower court found that plaintiffs’ action was not brought in bad faith, with beneficiaries only socked with attorney’s fees of a trustee if their actions are unfounded, frivolous, and brought in bad—nothing of the sort which occurred in this case.