Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, Super.Ct.No. RIC417501, Joan F. Burgess, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Bell, Orrock & Watase, Stanley O. Orrock; Arias & Lockwood and Christopher D. Lockwood for Defendant and Appellant.
Frank P. Barbaro & Associates, Frank P. Barbaro, Yolanda Medina; Hanna & Scott and Douglas A. Scott, for Plaintiff and Respondent Ronald Santos.
No appearance for Plaintiff and Respondent LaShaunda Santos.
King, J.
After the County of Riverside (the County) won a summary judgment motion, it filed a motion to recover attorney fees and costs under Code of Civil Procedure section 1038. That section allows a defendant to recover defense costs when the court determines that a proceeding was not brought in good faith and with reasonable cause. The County requested attorney fees of $20,825 and costs of $520.36.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
The trial court granted the County’s motion and awarded it $3,000 in defense fees and costs. The County appeals, contending that the amount awarded is inadequate to reimburse it for the fees and costs it incurred as a result of this allegedly frivolous lawsuit.
I. FACTS AND PROCEDURAL HISTORY
On August 29, 2003, plaintiff Ronald Santos was severely injured when his motorcycle hit the dirt shoulder of Sandia Creek Drive and went off the road. The complaint alleged that Sandia Creek Drive is in the City and County of Riverside.
The road is in the County of Riverside, but not the City of Riverside. This error was partially corrected in the first amended complaint. The accident actually occurred in the mountains west of Temecula.
In August, 2004, plaintiffs sued the County, alleging that (1) the accident was due to a dangerous condition of the roadway and (2) the roadway was “designed, maintained, owned, controlled, . . . supervised, and constructed” by the County and Does 1 through 25. A number of more specific allegations supported the general allegation that the roadway was in a dangerous condition at the time of the accident.
In January 2005, plaintiffs filed an amendment to the complaint designating the Santa Rosa Community Services District (the District) as Doe 1.
On May 13, 2005, plaintiffs filed a first amended complaint naming both the County and the District. The charging allegations were essentially unchanged. The County filed a general denial and alleged that the subject road was not within its jurisdiction, custody, or control.
On June 24, 2005, the County filed a motion for summary judgment. The motion was based on the ground that, as a matter of law, it did not own, control, construct, or maintain Sandia Creek Drive.
In support of the motion, the County attached a declaration from one of its attorneys with the following attachments: (1) the first amended complaint; (2) the police report of the accident; (3) a declaration from the general manager of the District; and (4) a letter to plaintiffs’ counsel from the County’s attorneys. In the declaration, the general manager asserts that the District is a legal entity independent of the County, and that it is responsible for constructing and maintaining the road at the accident site. In the letter, the County’s attorneys state that plaintiffs’ counsel had acknowledged, on April 28, 2005, that the County did not own or maintain the subject roadway. Accordingly, the County’s attorneys requested that the case be dismissed as to it.
A declaration from the County’s lead attorney was also submitted with the motion. It detailed his efforts to convince plaintiffs’ attorney to dismiss the action because the subject road was not owned or maintained by the County. Attached were three letters from him requesting dismissal.
A declaration from the county surveyor confirmed that the accident site was not constructed, owned, controlled, or maintained by the County.
Plaintiffs opposed the summary judgment motion. They alleged that the County had been uncooperative in producing documents, and that further factual investigation was needed to determine the extent of the County’s involvement with the road, if any. A continuance was requested in order to continue with the factual investigation.
The County opposed the request for a continuance and submitted a formal admission by the District that the road was within its maintained road system. The County also cited this court’s decision in Tolan v. State of California ex rel. Dept. of Transportation (1979) 100 Cal.App.3d 980. In Tolan, we held that, “in providing in Government Code section 835 that a public entity is liable for injury caused by a dangerous condition of ‘its property,’ the Legislature meant the public entity having ownership or control of the property at the time of the injury.” (Id. at p. 984.)
The summary judgment motion was heard on September 13, 2005. The trial court, Judge Erik Michael Kaiser, heard argument and continued the hearing until January 18, 2006, for further briefing.
When the County filed its supplemental brief on December 2, 2005, it also filed declarations from the County’s highway operations superintendent, the County’s traffic engineer, and the station commander of the Temecula office of the Riverside County Sheriff’s Department.
The first declaration stated that Sandia Creek Road was not in the maintained road system of the County, and the County had not been asked to perform any maintenance on the road by the District since the District was formed in 1978.
The second declaration also stated that the road was not in the County’s road system, and that the County had never provided striping, markings, or signs on the road. The traffic engineer did confirm that the County had done some traffic studies on the road at the request of the District.
The third declaration confirmed an agreement with the District to provide certain law enforcement services for the District. Under the agreement, the County provided radar enforcement services on a number of roads in the District. The declaration does not state if radar enforcement services were provided on the subject road. The declaration also states that the sheriff’s department does not investigate accidents within the District, and that it has not been requested to become involved in any road maintenance issues within the District. Road maintenance for Sandia Creek Road is provided by the District, and only the District. A copy of the law enforcement services agreement was attached.
Plaintiffs filed a further opposition on December 30, 2005. They contended that, although the County had continued to refuse to produce documents, they had obtained documents from the Local Agency Formation Commission (LAFCO) which raised triable issues of fact as to the ownership and control of the road. Exhibits attached to the plaintiffs’ supplemental brief are: (1) the LAFCO resolution approving formation of the District; (2) the County resolution declaring the District to be duly organized; (3) two parcel maps; (4) two County speed studies of Sandia Creek Road; (5) excerpts from the deposition of the District’s general manager in which he states that the District maintained the road but he was unable to state who owned it; (6) a letter regarding taxes collected by the County and distributed to the District; (7) a declaration by a paralegal for plaintiffs’ counsel which details her efforts to determine the responsible public entity; and (8) a letter from plaintiffs’ counsel to the County which discusses the reasons why plaintiffs’ counsel was unwilling to dismiss the County from the litigation as of May 25, 2005.
Plaintiffs also submitted the declaration of Wayne Fowler, a LAFCO employee. Mr. Fowler opined that the County still owned the road. He also was prepared to testify that control and maintenance of the road was still subject to the consent of the County Board of Supervisors. The County objected to this declaration and its objection was sustained. The declaration was not considered by the trial court.
On January 10, 2006, the County filed a reply to plaintiffs’ opposition and requested that portions of certain declarations be stricken. Further excerpts from the deposition of the District’s general manager were attached to the County’s reply.
Based on all these filings, plaintiffs ultimately contested the County’s contention that it did not construct, own, maintain, or control Sandia Creek Road. While admitting that the District controlled the road, plaintiffs argued that the County had some joint obligation to control or maintain the road. Thus, in the statement of disputed and undisputed facts, plaintiffs alleged that there were factual issues on the questions of ownership, control, and maintenance of the road.
On January 18, 2006, the summary judgment motion was heard by Commissioner Joan F. Burgess. Commissioner Burgess granted the County’s summary judgment motion, finding that there were no triable issues of fact regarding ownership, control, or maintenance of the roadway. Since the facts established the District was the public entity responsible for the road where the accident occurred, the County could not, under Tolan, be held responsible for the condition of the road at the time of the accident. Judgment was subsequently entered accordingly.
The Subsequent Motion for Attorney Fees and Costs
Having prevailed on summary judgment, the County filed its motion under section 1038. The filing detailed the efforts made by the County and its counsel to persuade plaintiffs’ counsel that the County did not have ownership or control of the road where the accident occurred. It also detailed the attorney fees and costs incurred by the County in defending the action. As noted above, the County requested attorney fees of $20,825 and costs of $520.36.
The requested amount subsequently increased to $22,337.02.
Plaintiffs opposed the motion on grounds that they “litigated this matter with reasonable cause and with a good faith belief that there was justifiable controversy under the facts and law.” Plaintiffs faulted the County for its alleged intransigent attitude, and its alleged failure to produce documents to support its contentions, despite formal and informal requests.
After hearing the motion, Commissioner Burgess, granted the motion and set the amount at $3,000. Commissioner Burgess explained her ruling as follows: “I think at some point in time, and I think it’s right around December 2nd-ish when the County filed the declarations and whatnot, that it became clear, I think, to plaintiffs that there should not have -- that basically there comes a time to throw in the towel, I guess is the way to put it. And I think that time was right around December 2nd, when the County’s declarations that I relied on were filed, and I thought those declarations clearly established that there should not have been -- and you really couldn’t at that time continue on with these arguments that somehow there was jurisdiction and that the County had some degree of control over it.” The commissioner therefore found that plaintiffs had been prosecuting with reasonable cause and good faith prior to December 2, 2005, but that any reasonable cause was dissipated by the filing of the December 2 supplemental points and authorities in support of the County’s motion for summary judgment and accompanying declarations.
The commissioner then explained that she had gone over the billing statements and charged plaintiffs for costs incurred after December 2, 2005, in the sum of $3,000.
II. DISCUSSION
Section 1038 provides that, after the granting of defendant’s summary judgment motion, the trial court may, upon defendant’s request, “determine whether or not the plaintiff . . . brought the proceeding with reasonable cause and in the good faith belief that there was a justifiable controversy under the facts and law which warranted the filing of the complaint . . . . If the court should determine that the proceeding was not brought in good faith and with reasonable cause, an additional issue shall be decided as to the defense costs reasonably and necessarily incurred by the party or parties opposing the proceeding, and the court shall render judgment in favor of that party in the amount of all reasonable and necessary defense costs, in addition to those costs normally awarded to the prevailing party.”
In the leading case of Kobzoff v. Los Angeles County Harbor/UCLA Medical Center (1998) 19 Cal.4th 851 (Kobzoff), our Supreme Court held that “applicable defendants may recover defense costs under section 1038 if the trial court finds the plaintiffs lacked either reasonable cause or good faith in filing or maintaining the lawsuit.” (Id. at p. 853.) The court made it clear that the statutory requirements apply not only to the initiation of the action, but also to the continued maintenance of the action. (Ibid.)
The issue in Kobzoff, as here, is the question of whether the plaintiff lacked reasonable cause in bringing and maintaining the lawsuit. In this regard, our Supreme Court discussed the meaning of the statutory term:
“The meaning of ‘reasonable cause’ has been the subject of some debate, but most courts do agree on its general interpretation. Several courts have found instructive the definition of ‘probable cause’ in the malicious prosecution context. [Citation.] The terms ‘reasonable cause’ and ‘probable cause’ are generally considered synonymous, with ‘reasonable cause’ defined under an objective standard as ‘“whether any reasonable attorney would have thought the claim tenable.”’ [Citation.] Another court stated, ‘Reasonable cause is to be determined objectively, as a matter of law, on the basis of the facts known to the plaintiff when he or she filed or maintained the action.’ [Citation.] [¶] Reasonable cause is often found lacking in cases in which the public entities show they did not own or operate the injury site. [Citations.]” (Kobzoff, supra, 19 Cal.4th at pp. 857-858.)
In Knight v. City of Capitola (1992) 4 Cal.App.4th 918, a surfer who was injured on a public beach sued three public entities, including the county where the accident occurred. (Id. at p. 923.) The appellate court found that an award under section 1038 was proper because reasonable cause to file the action was lacking: “[A]n indispensable factual element of Knight’s claim against the county did not exist: The county neither owned nor controlled the beach at the time of the accident.” (Knight v. City of Capitola, supra, at p. 933.)
The court further explained: “Nor can a plaintiff meet the reasonable cause requirement simply by showing that he or she had no information, one way or the other, as to the existence of one or more elements of the cause of action. If a legislative purpose to protect public entities from meritless claims is to be served, a plaintiff must bear a burden of investigation sufficient to establish at least a basis for reasonable belief that all elements exist. Abstract hope is not reasonable belief: Under section 1038 a plaintiff who lacks even the basis for a reasonable belief in the existence of all essential elements of his or her claim cannot simply name every conceivable defendant and rely on what future discovery may turn up. This point was clearly made, on facts comparable to those before us, in Carroll v. State of California [1990] 217 Cal.App.3d [134,] 140-143.” (Knight v. City of Capitola, supra, 4 Cal.App.4th at pp. 933-934.)
In Carroll, we considered a section 1038 motion following the grant of a summary judgment motion. In Kobzoff, our Supreme Court discussed Carroll as follows: “Carroll’s facts are similar to Knight’s. In both actions, the plaintiffs were injured on public property and sued three governmental entities for their injuries: the city, county, and state. In each case, the county and state informed the plaintiffs they neither owned nor controlled the accident sites. In both cases, the plaintiffs effectively conceded that they lacked reasonable cause to pursue the actions against those defendants. In Carroll, the trial court awarded both the county and state their costs under section 1038, after finding ‘nothing in the record that even hints that [the plaintiffs] had any facts upon which to base a good faith belief or reasonable cause that either the County or the State’ owned or operated the intersection that was the accident site. [Citation.]” (Kobzoff, supra, 19 Cal.4th at p. 859.)
Both Kobzoff and Knight cite our case of Tolan v. State of California ex rel. Dept. of Transportation, supra, 100 Cal.App.3d 980. In that case we held that, in order to be held liable, the public entity must be the owner or in control of the property at the time of the injury. (Id. at p. 983.)
In the light of these cases, the issue becomes whether there was sufficient evidence here to allow the trial court to determine that plaintiffs had reasonable cause to bring an action against the County. Unquestionably, plaintiffs were repeatedly advised by the County during the claims process and prior to the filing of the action, that the County did not own or control the road where the accident occurred. While we agree with plaintiffs that they were not required to accept the County’s unsworn assurances, those assurances alerted plaintiffs to the issue and placed a higher burden of investigation on plaintiffs before filing suit. “Furthermore, the probable cause element does not place an improper or unjustified hardship on these plaintiffs. The defendants have an ‘“interest in freedom from unjustifiable and unreasonable litigation.” [Citation.]’ [Citation.] [¶] At the minimum, this term requires that the Plaintiffs’ attorney have some articulable fact or facts to conclude that a particular person or entity should be initially included in the lawsuit as a party-defendant.” (Carroll v. State of California, supra, 217 Cal.App.3d at p. 142.)
In this regard, plaintiffs state that, before filing suit, they consulted an experienced licensed land surveyor employed by Krueper Engineering, a firm of “certified highway engineers who frequently advise [plaintiffs’ counsel] as to matters of transportation or roadway conditions.” The surveyor consulted an assessor’s map and advised plaintiffs’ counsel that the road was in the County and that “the [County] was responsible for this road.” After the complaint was filed, the surveyor was advised of the County’s claim that it did not own or control the road. The surveyor advised plaintiffs’ counsel that he “had no knowledge or experience with the [District] as it . . . was not indicated on my assessor’s map.”
The trial court also had before it a declaration from a paralegal employed by plaintiffs’ counsel. The paralegal detailed the steps she had taken to determine the owner of the road at the time of the accident.
After filing the action, plaintiffs eventually designated the District as Doe 1, and filed an amended complaint adding the District as a defendant on May 13, 2005. At the same time, it sent a request for production of documents to the County. The request was intended to allow plaintiffs to determine if the County “had any liability through ownership or control of this road.” The County did not produce any documents in response to this request, and the trial judge, Judge Kaiser, found the County’s response to be inadequate in light of the fact that plaintiffs had some documents stamped “County of Riverside.” He therefore granted a continuance of the summary judgment motion to allow plaintiffs to continue their search for documents. On December 2, 2005, during this continuance, the County produced further documents that the trial court, Commissioner Burgess, found to be dispositive of the summary judgment motion and the section 1038 motion.
This is, therefore, not a case in which plaintiffs had done no investigation prior to filing the complaint. It is not necessarily governed by Knight because, in that case, plaintiff did not even oppose the County’s summary judgment motion and there was “no assertion that the county exercised any relevant control over the beach apart from what might be implicit in ownership of the beach.” (Knight v. City of Capitola, supra, 4 Cal.App.4th at pp. 930-931, 933.)
Nor is our decision in Carroll dispositive. In that case, plaintiff proceeded without any facts indicating that the County had ownership or control of the intersection where the accident occurred. (Carroll v. State of California, supra, 217 Cal.App.3d at p. 143.) Here, there were at least some arguable indications that the County had some control over the roadway.
In Rink v. City of Cupertino (1989) 216 Cal.App.3d 1362, the appellate court applied an abuse of discretion standard and found that the trial court did not abuse its discretion in denying a request for attorney fees under section 1038. (Rink v. City of Cupertino, supra, at p. 1369.) Similarly, in Kobzoff, the court seemed to apply an abuse of discretion standard by holding that “the trial court acted well within its discretion in awarding the County the section 1038 fees, because plaintiffs lacked reasonable cause in maintaining their action notwithstanding the County’s clear statutory immunity.”(Kobzoff, supra, 19 Cal.4th at p. 855.) If abuse of discretion is the appropriate standard, we would conclude that the trial court did not abuse its discretion in picking the December 2, 2005, date as the date when plaintiffs should have “thrown in the towel” because, by that date, it became clear that plaintiffs’ control arguments were meritless.
If a substantial evidence standard of review applied, we would conclude that the factual record contains sufficient evidence to justify the trial court’s finding. In Carroll, we combined the two standards by finding that “substantial evidence supports the trial courts’ awards of costs and attorney’s fees against Plaintiffs. We cannot find an abuse of discretion by either trial judge in their orders.” (Carroll v. State of California, supra, 217 Cal.App.3d at p. 143.)
Carroll also cites the objective standard: “The definition of the probable cause element is an objective standard determining ‘. . . the defendant’s belief in, or knowledge of, a given state of facts, and not . . . the defendant’s belief in, or evaluation of, the legal merits of the claim.’ [Citation.]” (Carroll v. State of California, supra, 217 Cal.App.3d at p. 142.)
But other authorities apply a de novo standard of review. In Kobzoff, our Supreme Court said: “An award of defense costs may be made only on notice and an opportunity to be heard, and the court determines section 1038 liability as a matter of law. [Citation.]” (Kobzoff, supra, 19 Cal.4th at pp. 857-858.) Legal issues are, of course, reviewed de novo.
“‘Reasonable cause is to be determined objectively, as a matter of law, on the basis of the facts known to the plaintiff when he or she filed or maintained the action. Once what the plaintiff (or his or her attorney) knew has been determined, or found to be undisputed, it is for the court to decide “‘Whether any reasonable attorney would have thought the claim tenable . . . .’” [Citations.] Because the opinion of the hypothetical reasonable attorney is to be determined as a matter of law, reasonable cause is subject to de novo review on appeal.’ (Knight v. City of Capitola, supra, 4 Cal.App.4th at p. 932, original italics.)” (Hall v. Regents of University of California (1996) 43 Cal.App.4th 1580, 1586.)
The parties agree that a de novo standard of review is appropriate. Plaintiffs rely on the excerpt from Hall quoted above.
The County cites Castro v. Superior Court (2004) 116 Cal.App.4th 1010. That case involved a prevailing party determination under section 405.38. The court noted that, although the trial court’s determination of the “propriety or amount” of an attorney fees award is reviewed using an abuse of discretion standard, the interpretation of the statutory term “prevailing party” is a question of statutory construction that is reviewed de novo. (Castro v. Superior Court, supra, at p. 1017.)
The issue to be decided, therefore, is whether any reasonable attorney would have thought that plaintiffs’ claim was tenable. In Carroll, the County’s lack of control over the subject road was undisputed, and the plaintiff had no facts indicating that the County owned or controlled the road. This was not the case here. Nor was this a case in which the County was kept in the action to avoid an “empty chair” defense, as in Hall. Instead, there were some facts justifying the initiation of the litigation against the County. As noted above, the primary fact was that, prior to the filing of the action, a licensed surveyor from a traffic engineering firm consulted county assessor maps and advised plaintiffs’ counsel that the County was responsible for the road.
The issue of when our hypothetical reasonable attorney would have ceased maintaining the action because he or she decided that the County lacked control of the highway is cloudier because of the County’s failure to fully respond to plaintiffs’ document requests. Instead of responding, the County filed its summary judgment motion and attached declarations. Although the declaration of the County surveyor dated June 21, 2005, clearly stated that the County lacked ownership or control of the accident site, plaintiffs exhausted the subject by soldiering on and opposing the summary judgment motion.
Plaintiffs opposed the summary judgment motion by filing its own documents in support of its claim that the County had some control over the road. While plaintiffs’ counsel was tenacious, we cannot say that he acted without reasonable cause in maintaining the action, at least until the County produced overwhelming evidence in its December 2, 2005, filings. Until then, there was a barely tenable argument presented by plaintiffs that the County retained some control over the accident site. We therefore agree with the trial court that a reasonable attorney would have ended the fight as of December 2, 2005. Since there is no issue concerning the trial court’s fee and cost calculations, the determination that good cause was lacking after December 2, 2005, and that the proper amount of fees to be awarded is $3,000, must stand.
III. DISPOSITION
The award of attorney fees under section 1038 is affirmed. Respondents to recover their costs on appeal.
We concur: Hollenhorst, Acting P.J., McKinster,J.