Ponte v. County of Calaveras, No. C079180 (D3 Aug. 15, 2017)
Plaintiff here brought a sketchy oral contract/promissory estoppel claim against a small County in NorCal. After a bunch of demurrers sustained with leave to amend, the trial court granted SJ for the County. The trial court ultimately found that the claims had been brought in both objective and subjective bad faith, and awarded fees to the County under Code of Civil Procedure § 1038.
Yet again (twice in a row) the Court drops a footnote explaining that a party’s brief lacks appropriate record citations. This is almost as bad of a sign for your chances on appeal as a justice remarking during oral argument that “you come from a good firm, but . . . .”
In any event, after dispensing with some feeble arguments on the merits, the Court of Appeal hits the issue of fee shifting for bad faith litigation. Code of Civil Procedure § 1038 permits a public entity defendant or an alleged indemnitor who prevails on summary judgment to recover its costs and fees when the court finds that plaintiff filed without “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.” It’s basically a way for certain defendants to recover fees without having to file a separate malicious prosecution action.
But unlike malicious prosecution, whose elements require both subjective bad faith and objective baselessness, § 1038—or at least as the court here reads the case law—permits a fee recovery without proof of the subjective element. So although Plaintiff’s deficient brief here might assert subjective good faith, he did nothing to establish that his claims had some objectively reasonable basis in fact and law because there was no evidence that he and the County ever entered any contract. Under the circumstances, the trial court properly shifted fees under § 1038.
Affirmed.
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