Public Entity Properly Denied Fees/Costs Under Section 1038 By Simply Pointing To Entirety Of Record.
Public entities seeking to recover fees and costs under Code of Civil Procedure section 1038—a fee-shifting section allowing such entities to recoup fees and costs if they can demonstrate a suit was brought in bad faith or without reasonable cause—should take extra care to review the next decision. They cannot simply point to the entirety of the record and hope the trial judge will help them satisfy their burden as the moving parties in such proceedings.
In Wedgeworth v. City of Newport Beach, Case No. G048902 (4th Dist., Div. 3 Feb. 11, 2015) (unpublished), wife sued for her husband’s suicide while in the custody of the police department, eventually not being able to beat a summary judgment motion which was affirmed in a companion appeal. However, City then moved for recovery of section 1038 fees and costs, essentially predicated on the “entirety of the record” rather than presenting specific supporting evidence or specific citations to the trial record. The lower court denied the request, determining that it was “not the scrivener for the defendants.”
The appellate court affirmed, agreeing that the public entity had to lay a much more detailed evidentiary foundation for a section 1038 showing rather than having the trial judge “work up the motion” for the City. Even though the same trial judge knew many of the facts in the summary judgment proceeding, section 1038 has different elements needing specific evidentiary support—especially given some detailed opposition by wife.
In affirming, the 3-0 panel—with the author being Justice Fybel—informed City that its appeal was close to frivolous.