Judge Blaine K. Bowman, Case Number: 37-2017-00048800-CU-MC-CTL, Date: 2024-06-28 Tentative Ruling

Judge: Blaine K. Bowman, Case: 37-2017-00048800-CU-MC-CTL, Date: 2024-06-28 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - June 27, 2024

06/28/2024 08:30:00 AM C-74 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Blaine K. Bowman

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Civil - Unlimited Misc Complaints - Other Motion Hearing (Civil) 37-2017-00048800-CU-MC-CTL SAN DIEGANS FOR OPEN GOVERNMENT VS SAN YSIDRO SCHOOL DISTRICT CAUSAL DOCUMENT/DATE FILED:

The court addresses the evidentiary issues. Defendant San Ysidro School District's request for judicial notice is GRANTED.

The court then rules as follows. Defendant San Ysidro School District's motion for attorney's fees is DENIED.

SYSD in its moving papers seeks attorney's fees under CCP � 1038, CCP � 128.5, CCP � 128.7 and CCP � 1032.

Pursuant to CCP � 1038 (a) In any civil proceeding under the Government Claims Act (Division 3.6 (commencing with Section 810) of Title 1 of the Government Code) or for express or implied indemnity or for contribution in any civil action, the court, upon motion of the defendant or cross-defendant, shall, at the time of the granting of any summary judgment, motion for directed verdict, motion for judgment under Section 631.8, or any nonsuit dismissing the moving party other than the plaintiff, petitioner, cross-complainant, or intervenor, or at a later time set forth by rule of the Judicial Council adopted under Section 1034, determine whether or not the plaintiff, petitioner, cross-complainant, or intervenor 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, petition, cross-complaint, or complaint or answer in intervention. 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. An award of defense costs under this section shall not be made except on notice contained in a party's papers and an opportunity to be heard.

(b) 'Defense costs,' as used in this section, shall include reasonable attorney's fees, expert witness fees, the expense of services of experts, advisers, and consultants in defense of the proceeding, and where reasonably and necessarily incurred in defending the proceeding.

(c) This section shall be applicable only on motion made before the discharge of the jury or entry of judgment, and any party requesting the relief pursuant to this section waives any right to seek damages for malicious prosecution. Failure to make the motion shall not be deemed a waiver of the right to pursue a malicious prosecution action.

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3109673 10 CASE NUMBER: CASE TITLE: SAN DIEGANS FOR OPEN GOVERNMENT VS SAN YSIDRO 37-2017-00048800-CU-MC-CTL (d) This section shall only apply if the defendant or cross-defendant has made a motion for summary judgment, judgment under Section 631.8, directed verdict, or nonsuit and the motion is granted.

Preliminarily, SYSD fails to establish that this civil proceeding was brought under the Government Claims Act or for express or implied indemnity or for contribution as required under subsection (a). The original complaint alleged one cause of action for 'Violation of Open-Government Laws' and does not reference the Government Claims Act or causes of action for indemnity or contribution. The operative second amended complaint adds causes of action for 'Illegality of Disbursement Caused by Defendants' 'Illegality of Defendants' Conduct as Described in State Audit Report' neither of which references the Government Claims Act or causes of action for indemnity or contribution. Moreover, under subsection (c) the award of CCP � 1038 attorney's fees is available 'only on motion made before the discharge of the jury or entry of judgment.' Court records show that judgment was entered on November 14, 2023 [ROA 274] and that SYSD filed this motion on January 12, 2024 [ROA 279] after entry of judgment. For these reasons, SYSD's CCP � 1038 motion is DENIED. In reply SYSD argues that Plaintiff's claims were subject to the Government Claims Act. Even if SYSD is able to establish the applicability of the Government Claims Act, SYSD fails to address the issue of the untimely filing of this motion. Absent compliance with the filing requirements of subsection (c), SYSD's motion for CCP � 1038 attorney's fees must be DENIED.

SYSD also relies on CCP � 128.5. This section provides, in part: . . . .

(f) Sanctions ordered pursuant to this section shall be ordered pursuant to the following conditions and procedures: (1) If, after notice and a reasonable opportunity to respond, the court issues an order pursuant to subdivision (a), the court may, subject to the conditions stated below, impose an appropriate sanction upon the party, the party's attorneys, or both, for an action or tactic described in subdivision (a). In determining what sanctions, if any, should be ordered, the court shall consider whether a party seeking sanctions has exercised due diligence.

(A) A motion for sanctions under this section shall be made separately from other motions or requests and shall describe the specific alleged action or tactic, made in bad faith, that is frivolous or solely intended to cause unnecessary delay.

(B) If the alleged action or tactic is the making or opposing of a written motion or the filing and service of a complaint, cross-complaint, answer, or other responsive pleading that can be withdrawn or appropriately corrected, a notice of motion shall be served as provided in Section 1010, but shall not be filed with or presented to the court, unless 21 days after service of the motion or any other period as the court may prescribe, the challenged action or tactic is not withdrawn or appropriately corrected.

Preliminarily, SYSD improperly combines its CCP � 128.5 motion with a CCP � 128.7 and a CCP � 1038 motion in violation of the requirements of subsection (f)(1)(A). More importantly, SYSD fails to submit evidence showing compliance with the 21-day safe harbor provision of subsection (f)(1)(B). Instead, a review of the court file shows that SYSD served its motion papers on January 12, 2024, the same day SYSD filed its motion [ROA 279]. Such service and filing is not in conformance with the requirements of subsection (f)(1)(B). Failure to comply with the safe harbor provision precludes the award of sanctions.

Transcon Financial, Inc. v. Reid & Hellyer, APC (2022) 81 Cal.App.5th 547, 551 citing Martorana v. Marlin & Saltzman (2009) 175 Cal.App.4th 685, 700. As such, SYSD's motion for CCP � 128.5 sanctions must be DENIED.

CCP � 128.7(c) contains provisions similar to those in CCP � 128.5(f). SYSD's motion for CCP � 128.7 sanctions is DENIED for the same reasons as SYSD's motion for CCP � 128.5 sanctions.

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3109673 10 CASE NUMBER: CASE TITLE: SAN DIEGANS FOR OPEN GOVERNMENT VS SAN YSIDRO 37-2017-00048800-CU-MC-CTL The court is not persuaded by SYSD's arguments seeking to avoid application of the 21-day safe harbor provisions of CCP � 128.5 and CCP � 128.7. Both statutes clearly require a 21-day safe harbor period and SYSD fails to provide any authority to support its arguments that any type of notice other than the required 21-day time period satisfies the safe harbor requirements of CCP � 128.5(f) and CCP � 128.7(c).

SYSD also relies on CCP � 1032. However, CCP � 1032 applies only to costs, not attorney's fees. To the extent SYSD incorporates CCP � 1033.5(a)(10), this section allows for the recovery of attorney's fees as costs only when authorized by contract, statute or law. Absent any underlying contractual or statutory basis for attorney's fees, there is no basis to award attorney's fees as costs pursuant to CCP � 1032. In a footnote to SYSD's reply brief SYSD refers to CCP � 1021.5 as a basis for the award of attorney's fees. However, SYSD failed to raise this issue in its moving papers, thereby improperly depriving Plaintiff of the opportunity to respond. Although SYSD sought and was granted ex parte relief to file a supplemental brief as to CCP � 1021.5 attorney's fees, there is no supplemental brief in the court file.

If this tentative ruling is confirmed the Minute Order will be the final order of the court and the parties shall not submit any further order on this motion.

Unless the ruling(s) above indicate that an appearance is necessary, parties who wish to submit, who are satisfied with the above tentative ruling(s), and/or who do not otherwise wish to argue the motion(s) are encouraged to give notice to the Court and each other of their intention not to appear.

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3109673 10