Opinion
A129588
08-29-2011
VIVIAN LE et al., Plaintiffs and Respondents, v. HAYWARD UNIFIED SCHOOL DISTRICT et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Alameda County Super. Ct. No. RG09454855)
I. INTRODUCTION
Plaintiffs, a six-year-old elementary student at East Avenue Elementary School (School) in Hayward, Alameda County, and her parents (her guardians ad litem for purposes of this litigation) sued the Hayward Unified School District (District) and several teachers and other employees of the School for injuries suffered when the student fell on an allegedly dangerous concrete portion of the School's playground. The trial court granted summary judgment in favor of all the individual defendants, but denied it as to the District, against whom the case is still pending. The trial court also denied the individual defendants' motions for sanctions against the plaintiffs' attorney under Code of Civil Procedure section 1038 (section 1038). Those defendants appeal from that denial. For several reasons, we reject their appeal and affirm the trial court's orders.
II. FACTUAL AND PROCEDURAL BACKGROUND
On September 18, 2008, plaintiff Vivien Le, as noted then six years old, fell on the playground at the School, where she was in the second grade. She struck her head and was, as a consequence, seriously injured, allegedly requiring brain surgery at Oakland's Childrens' Hospital.
On May 28, 2009, plaintiffs sued the District and the individual defendants alleging that (1) the District failed to both properly construct and/or maintain in good repair the pavement upon which Le was playing, (2) it had knowledge of those inadequacies, (3) it and some of the individual defendants failed to properly monitor or supervise the students' use of that playground, and (4) all of the defendants, including the individual defendants, neither provided nor requested medical attention for Le after her injury, and/or failed to notify her parents of either that injury or its nature and extent.
The named individual defendants included a nurse assigned to the school, a school receptionist, Le's second-grade teacher, and other teachers who were allegedly on duty during the recess when Le's fall occurred. The complaint alleged that they either improperly purported to have no knowledge of the fall, did not attend promptly and correctly to Le and her injuries, or were otherwise at fault in connection with those injuries and the alleged subsequent lack of attention provided Le.
At various points of time in 2010, all the defendants moved for summary judgment against plaintiffs. After briefing and oral argument, on June 29, 2010, the trial court granted summary judgment in favor of the individual defendants, but denied that motion as to the District. As of this date, the case is still pending against the District.
In the same orders, the court also denied the individual defendants' motions to grant sanctions against plaintiffs' counsel under section 1038. In its two (substantially similar) rulings regarding the individual defendants' motions for summary judgment and sanctions, the trial court held that, per the record before it, none of the individual defendants "were on recess duty at the time of Vivien Le's accident, nor witnessed that accident," and that, therefore, plaintiffs had "fail[ed] to provide any evidence that would impose a duty on the moving Defendants to supervise Le at the time of the accident, or to notify her parents of an injury about which they were unaware." As a result, the court held, those individual defendants were, among other things, "immune from liability for failure to make a physical examination of Le to determine whether she had any injuries that neither she nor anyone else mentioned to them. (See Government Code § 855.6)."
As noted, the court denied the individual defendants' motions for sanctions under section 1038 (the District did not include such a request for sanctions in its motion), stating that (1) there was no authority "allowing the imposition of sanctions against Plaintiffs' attorney under CCP § 1038" and (2) there had been no showing "that Plaintiffs did not have reasonable cause to bring this action and did not bring the proceeding with a good faith belief that there was a justiciable controversy. . . . Here, there is an arguably meritorious claim against the School District."
The individual defendants (hereafter appellants) filed a timely notice of appeal from the trial court's denial of their motions for sanctions against plaintiffs' counsel under section 1038.
III. DISCUSSION
We affirm the trial court's order for three reasons: (1) the trial court expressly found that appellants failed to establish one of the essential elements under section 1038, i.e., that plaintiffs had no "reasonable cause" for bringing their action, and we find no basis in the record to overturn that ruling; (2) we do not believe section 1038 may be used to penalize plaintiffs who ask for, but are denied, relief for alleged torts against individual employees of a public defendant-entity when the entity itself has been denied summary judgment and the tort action is still pending as to it; and (3) the trial court did not err in declining to award sanctions under section 1038 against plaintiffs' counsel.
One of those reasons is not that the orders and related judgments are nonappealable as contended, albeit briefly, in respondents' brief to us. Because there were multiple defendants named in respondents' complaint, and because these appellants were all granted summary judgment, the case then became final as to them, and they were thus entitled to appeal from that portion of the court's orders denying their requests for section 1038 sanctions. (See, e.g., Nguyen v. Calhoun (2003) 105 Cal.App.4th 428, 437, and authorities cited therein.)
We begin with section 1038 which provides in relevant part:
"(a) In any civil proceeding under the California Tort Claims Act 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 intervener, 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 intervener 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 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. . . .
"(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." (§ 1038.)
In Kobzoff v. Los Angeles County Harbor/UCLA Medical Center (1998) 19 Cal.4th 851 (Kobzoff), our Supreme Court summarized—indeed, unanimously—the effect and proper interpretation of section 1038 in these words: "Section 1038 authorizes the defendants or cross-defendants to recover reasonable costs after prevailing on a dispositive motion (i.e., summary judgment, directed verdict, nonsuit, judgment before presentation of defense evidence, or other motion in an action for indemnity or contribution). (§ 1038, subds. (a), (c).) A defendant may not recover section 1038 costs simply because it won a summary judgment or other dispositive motion; victory does not per se indicate lack of reasonable cause. [Citation.] That victory is simply the first step. Following the court's determination of the dispositive motion, and before the court discharges the jury or enters the requisite judgment, the defendant must also make a motion for defense costs, as the statute directs, alleging that the plaintiff did not bring or maintain the proceeding in 'good faith' and with 'reasonable cause.' (§ 1038, subds. (a), (c).) 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. (§ 1038, subd. (a).) In seeking section 1038 costs, the defendant waives its right to malicious prosecution damages, to the extent the right exists, although the failure to make the motion will not be deemed a waiver of the right to pursue a malicious prosecution action. (§ 1038, subd. (c).)' . . . [¶] Construed literally, the statute quite clearly indicates plaintiffs must not only bring (or maintain) their action 'with reasonable cause,' but must also bring (or maintain) it 'in the good faith belief that there [is] a justifiable controversy under the facts and law.' [Citations.]
"The statute then states that if the court determines 'the proceeding was not brought in good faith and with reasonable cause,' it shall render judgment (i.e., reasonable defense costs) in favor of the party opposing the original proceeding (the County here), 'in addition to those costs normally awarded to the prevailing party,' once it determines 'the defense costs reasonably and necessarily incurred by the party or parties opposing the proceeding.' (§ 1038, subd. (a).) In selecting the construction that comports most closely with the apparent legislative intent, the use of 'and' in this section, when considered in light of the first conjunctive phrase, indicates that the Legislature intended that plaintiffs bring or maintain lawsuits both with reasonable cause and in good faith. Neither the context nor the language used in section 1038 justifies giving to the word 'and' a disjunctive construction. [Citation.]
"Thus, before denying a section 1038 motion, a court must find the plaintiff brought or maintained an action in the good faith belief in the action's justifiability and with objective reasonable cause." (Kobzoff, supra, 19 Cal.4th at pp. 856-857, 861-862.)
There were two separate motions by appellants (one involving two of them, the other the remainder) asking the trial court, if it granted those defendants' pending summary judgment motions, to also award section 1038 sanctions against the plaintiffs' attorneys. In two separate rulings, the trial court found that one of the two factors the Kobzoff court held must be present to permit the award of section 1038 sanctions, i.e., the lack of reasonable cause, was not present. It said, in those two rulings (rulings issued the same day): "The Court will not impose sanctions against Plaintiff (a six year old) and Plaintiff's Guardian Ad Litem in [the] absence of a showing by Defendants that Plaintiffs did not have reasonable cause to bring this action and did not bring the proceeding with a good faith belief that there was a justiciable controversy. In the only case the Court found involving a similar fact situation, all defendants were dismissed. Austin B. v. Escondido Union School Dist., (2007) 149 Cal.App.4th 860. Here there is an arguably meritorious claim against the School District."
This brief holding by the trial court essentially marries the first two points noted above as our bases for affirming the trial court, namely (1) the presence of "reasonable cause" in the original litigation and (2) the fact that summary judgment had been denied by the trial court as to the principal defendant in the action, the District, and the litigation is still ongoing as to it.
With regard, first, to the failure of appellants to show a lack of "reasonable cause" in the litigation, some of the facts brought to the attention of, and clearly considered by, the trial court in its rulings on the several summary judgment motions must be considered. First of all, the plaintiff was a six-year-old second grader in the School who apparently fell on the School's playground during a recess period during a school day, September 18, 2008, was later seen (that evening by her father) as having injuries to her head, and then diagnosed by a doctor as needing "a CT scan." That doctor directed the father to take his daughter "on an emergency basis to Oakland Childrens' Hospital & Research Center, where she was operated on [on] September 20, 2008." That operation was, allegedly, "brain surgery."
Second, the child's fall was, at least according to the declarations of both the father and an engineering contractor retained by him, due to many depressions in the asphalt-concrete on the School's "playground," some of which were allegedly as much as one-inch deep.
Third, at least per the allegations in the father's declaration, notwithstanding the child's evident (at least as of that evening) injuries to her head and face, her crying in the evening, and her statements to him regarding when and how she had fallen, i.e., during a school recess, and her statement that she and several of her playmates had reported her fall and injury to her second grade teacher (one of the appellants), allegedly no one associated with the School took any action to either report or attempt to ameliorate her injuries on the day in question, September 18. At least according to the father's declaration to the trial court, the only such steps taken were by her parents that evening.
In its order denying the District's motion for summary judgment, the trial court relied on the first two points noted above, and specifically observed that "[f]or the purposes of this Motion, Plaintiffs were entitled to rely on the District's apparent admission that Vivien Le fell and was injured at a broken and chipped blacktop area. Whether the blacktop constituted a dangerous condition of public property will be for a jury to determine."
Although there is nothing in the trial court's order denying the District's motion for summary judgment directly pertinent to what any of its then employees may or may not have done after Le's fall and injury, its ruling made clear that, from the evidence adduced by the plaintiffs in opposition to the several motions for summary judgment, there clearly could have been fault by the District. If there was, that fault would most probably have been the responsibility of one or more current or past employees of the District. In short, the original action, considered in its entirety, was brought with "reasonable cause," as the trial court held in its rulings denying appellants the sanctions they sought under section 1038.
We conclude that the existence of "reasonable cause" as defined both by our Supreme Court in Kobzoff and by our sister courts in other pertinent cases is not something that should be undertaken on a defendant-by-defendant basis. Rather, the holding of Kobzoff and many other cases strongly suggests that the key component of "reasonable cause" is whether or not such exists as to the overall case, i.e., mainly as to the public entity involved. Thus, in the case cited by the trial court in its denials of the requested sanctions, Austin B. v. Escondido Union School Dist., (2007) 149 Cal.App.4th 860, the court affirmed the award of such sanctions—but an award only to the school district—in a tort action brought against both it and several of its employees. Perhaps more importantly, in so doing, it stressed that section 1038 " ' "provides public entities with a protective remedy for defending against unmeritorious litigation." ' [Citations.] The statute permits public entities to recover costs, including attorney fees, from a plaintiff who files a frivolous civil action under the California Tort Claims Act after a defendant prevails on a motion for summary judgment, directed verdict, or nonsuit. [Citations.]" (Austin B., supra, 149 Cal.App.4th, at pp. 887-888, emphasis added.)
Other cases have likewise stressed that section 1038 is intended to protect public entities from non-meritorious litigation. Thus, in Clark v. Optical Coating Laboratory, Inc. (2008) 165 Cal.App.4th 150, 183 (Clark), our colleagues in Division One of this court summarized the purposes of section 1038 thusly: "Section 1038 provides a way for public entities, who are barred from bringing malicious prosecution suits, to recover the cost of defending frivolous suits." And in Hall v. Regents of University of California (1996) 43 Cal.App.4th 1580, 1587 (Hall), the court held that "the recognized purpose of section 1038 is to discourage frivolous lawsuits by allowing blameless public entities to recover their defense costs." (See also Gamble v. Los Angeles Dept. of Water & Power (2002) 97 Cal.App.4th 253, 259 & Knight v. City of Capitola (1992) 4 Cal.App.4th 918, 931.)
This statement by the Clark court provides another, albeit subsidiary, reason why section 1038 doesn't apply to suits against these appellants: unlike their co-defendant, the District, they were and are free to sue for malicious prosecution.
Finally on this point, no case cited by appellants nor any that we have found has approved a section 1038 award to, and only to, one or more employees of such an entity. We suspect there is a good reason for that: as and when, as here, both the public entity and some of its employees are sued in tort, common sense suggests that the attorney fees for the defense of the employees are paid by the public entity. And when, as here, the employees are granted summary judgment (or otherwise dismissed from the action), the same common sense suggests they are almost certainly not required to personally compensate those attorneys.
The only case we have found where such occurred is the Austin B. case cited above.
Which leaves the third basis for our affirmance: the fact that, as the trial court concluded, there is no legal authority authorizing the leveling of section 1038 sanctions against the plaintiffs' attorneys. At oral argument on the summary judgment and the section 1038 motions, defense counsel specifically requested that the sanctions be levied "against counsel" and cited the Hall case in support of his position that such was appropriate. However, in a footnote in his opening brief to this court, appellants' counsel acknowledges that there was neither an award of such fees in Hall, nor even a discussion of such. Further, unlike other sections of the same code (see, e.g., Code Civ. Proc., § 128.5, subd. (a)), there is nothing in the language of section 1038 indicating that sanctions under that section are awardable against a plaintiff's attorney, as appellants are specifically requesting.
IV. DISPOSITION
The orders appealed from are affirmed. Each party is to bear its own costs on appeal.
Haerle, J. We concur: Kline, P.J. Lambden, J.