Judge: Gregory Keosian, Case: BC691935, Date: 2023-09-19 Tentative Ruling

Case Number: BC691935    Hearing Date: November 21, 2023    Dept: 61

Defendants Skanska Traylor Shea and City of Beverly Hills’s Motion for Attorney Fees is DENIED.

Defendants to give notice.

I.    MOTION FOR ATTORNEY FEES

Parties must generally bear their own attorney fees, unless statute or agreement provide otherwise. (Code Civ. Proc. § 1021.)

Defendants City of Beverly Hills and Skanska Traylor Shea (Defendants) here seek attorney fees under Code of Civil Procedure § 1038, which allows defendants “[i]n any civil proceeding under the Government Claims Act . . . 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,” to seek “the defense costs reasonably and necessarily incurred by the party or parties opposing the proceeding.” (Code Civ. Proc. § 1038, subd. (a).) Said fees “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.” (Code Civ. Proc. § 1038, subd. (b).)

Upon bringing the motion, the court decides whether 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.” (Code Civ. Proc. § 1038, subd. (a).) Costs are awarded if the court determines the proceeding “was not brought in good faith and with reasonable cause.” (Ibid.)

Defendants argue that the claims against them were not brought in good faith or with reasonable cause, as stated in their motion for nonsuit, granted on May 24, 2023, because Plaintiffs had no evidence that either Defendant engaged in conduct upon which Plaintiff’ claims could be based. (Motion at pp. 6–7.) Defendants accordingly seek $627,407 in attorney fees. (Motion at p. 8.)

Plaintiffs in opposition argue that the motion is untimely, as it was brought after discharge of the jury and entry of judgment, contrary to statutory requirements. (Opposition at p. 4.) Plaintiffs also argue that Skanska cannot obtain fees under section 1038 because it is not a public entity. (Opposition at p. 8.) Plaintiffs further argue that the statute provides for fees for claims under the Tort Claims Act, and as such does not apply to the inverse condemnation phase of this proceeding, which is not subject to the act under Government Code § 905.1. (Opposition at pp. 7–8.) Plaintiffs further argue that their claims against Beverly Hills and Skanska were supported by good faith and reasonable cause. (Opposition at pp. 8–16.)

The motion is clearly untimely. Section 1038 states:

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.

(Code Civ. Proc., § 1038, subd (c).) The above provision means “that a motion for costs should be filed at the earliest practical time ‘prior to the discharge of the jury or entry of judgment.’” (Gamble v. Los Angeles Dept. of Water and Power (2002) 97 Cal.App.4th 253, 259.) The jury here was excused on May 31, 2023, and judgment was entered on July 7, 2023, more than two months before Defendants filed this motion on September 18, 2023. Defendants provide no reason for their delay.

The motion is therefore DENIED.