Burkot v. County of L.A. CA2/2

Filed 9/14/22 Burkot v. County of L.A. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

ANDREW BURKOT, B306244

Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC714061)
v.

COUNTY OF LOS ANGELES,

Defendant and Appellant.

APPEAL from a judgment and order of the Superior Court
of Los Angeles County, John J. Kralik, Judge. Affirmed.
Balaban & Spielberger, Daniel K. Balaban, Andrew J.
Spielberger, Kahren Harutyunyan, Vanessa L. Loftus-Brewer;
Esner, Chang & Boyer, Shea S. Murphy and Kathleen J. Becket
for Plaintiff and Appellant.
Collin + Collins, Erin R. Dunkerly, Christian E. Foy Nagy,
Sam Farzani and James C. Jardin for Defendant and Appellant.

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 Plaintiff and appellant Andrew Burkot (plaintiff) appeals
from the summary judgment entered in favor defendant and
appellant County of Los Angeles (County) in this action for
dangerous condition on public property under Government Code
section 835. The County appeals from the order denying its
motion for attorney fees under Code of Civil Procedure section
1038. We affirm the judgment and the order denying the motion
for attorney fees.

BACKGROUND
On November 1, 2017, at approximately 9:10 p.m., plaintiff
was crossing Montrose Avenue where it intersects Mira Vista
Avenue and Rincon Avenue in a marked, ladder-type crosswalk
when he was struck by a vehicle driven by Haemin Soonsang
Chang (Chang), traveling westbound on Montrose Avenue.
Plaintiff was approximately halfway across the marked crosswalk
when he heard Chang’s vehicle approaching. He stopped in-line
with the center left turn lane to allow the vehicle to pass by.
Montrose Avenue is a four-lane, two-way street that runs east-
west. There are two lanes of traffic in each direction divided by a
painted double yellow median that provides left turn lanes at
intersections. There is an uphill grade of approximately 5.9
percent for westbound motorists on Montrose Avenue
approaching the Mira Vista/Rincon intersection. On the night of
the accident, Chang was traveling in this uphill direction in the
No. 1 lane of westbound Montrose Avenue at a speed at or below
the 35-mile-per-hour (mph) limit.
Chang was generally familiar with the area and knew there
was a crosswalk at that location on Montrose Avenue. Chang did
not see anything in the crosswalk until his vehicle was

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approximately five to 10 feet away from plaintiff. When Chang
realized someone was in the crosswalk, he applied his brakes too
late to avoid a collision and instinctively turned to the left into
the center left turn lane. When Chang did so, his vehicle struck
and injured plaintiff.
At the time of the accident, several warning signs were
posted on Montrose Avenue to alert westbound motorists to the
pedestrian crossing. A yellow diamond warning sign with the
symbol for a pedestrian and the word “AHEAD” was located on
the right-side curb of westbound Montrose Avenue. There was
also a white sign with a red yield symbol and black arrow with
the words “YIELD HERE” and the symbol for a pedestrian and
an arrow pointing toward a line of white yield triangles on the
roadway on the right-side curb of westbound Montrose before the
crosswalk. A row of white yield triangles were painted across two
lanes of Montrose Avenue and the shared center lane before the
crosswalk.

PROCEDURAL HISTORY
After filing a claim against the County under the
Government Claims Act (Gov. Code, § 810 et seq.), plaintiff
commenced this action against the County, alleging dangerous
condition on public property as the sole cause of action. The
complaint alleges the intersection at which plaintiff was injured
is dangerous because of its defective design, improper roadway
maintenance, restricted sight lines for cars approaching the
intersection, and the absence of traffic signals and proper signs
for pedestrian safety.
The County filed a motion for summary judgment,
supported by a separate statement of undisputed facts and

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documentary evidence, including the declaration of Rock Miller, a
civil and traffic engineering expert. The County’s notice of
motion and motion requested costs and fees under Code of Civil
Procedure section 1038 and its memorandum of points and
authorities discussed its entitlement to such fees.
Plaintiff’s opposition to the motion was supported by,
among other evidence, the declarations of two experts, Robert
Koetting, a traffic accident reconstructionist, and Edward Ruzak,
a civil and traffic engineer. Both Koetting and Ruzak opined that
the roadway was dangerous because of a combination of factors,
including sight restrictions caused by the curvature and elevation
of the road; obstructions caused by parked cars, overgrown
foliage, and utility poles; and insufficient stopping sight distance
for motorists approaching the crosswalk. The parties filed
objections to their respective evidentiary submissions.
The trial court sustained the County’s evidentiary
objections to much of the Koetting and Ruzak declarations. The
court granted the summary judgment motion on March 11, 2020,
finding that the County met its initial burden of establishing no
dangerous condition and that plaintiff failed to raise any triable
issue of material fact to the contrary. The trial court further
found that lack of causation and the County’s immunity under
Government Code sections 830.4 and 830.8 were alternative
grounds for granting the summary judgment motion. The trial
court declined to address other issues unnecessary to its
summary judgment ruling.
Judgment was entered in the County’s favor on March 24,
2020. Notice of entry of judgment was served on March 25, 2020.
Plaintiff filed a motion for a new trial, which the trial court
denied.

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 On May 26, 2020, the County filed a motion for attorney
fees pursuant to Code of Civil Procedure section 1038. Plaintiff
opposed the motion, arguing that it was untimely and that his
action was brought in good faith and with reasonable cause. The
trial court found the motion was not untimely but denied it on
the merits in an order issued on September 21, 2020. This appeal
and cross-appeal followed.

DISCUSSION
I. Summary judgment
A. General legal principles and standard of review
Summary judgment is granted when a moving party
establishes the right to entry of judgment as a matter of law.
(Code Civ. Proc., § 437c, subd. (c).) A defendant moving for
summary judgment bears the initial burden of proving there is no
merit to a cause of action by showing that one or more elements
of the cause of action cannot be established or that there is a
complete defense to that cause of action. (Code Civ. Proc., § 437c,
subd. (p)(2); Cucuzza v. City of Santa Clara (2002) 104
Cal.App.4th 1031, 1037.) Once the defendant has made such a
showing, the burden shifts to the plaintiff to show that a triable
issue of one or more material facts exists as to that cause of
action or as to a defense to the cause of action. (Aguilar v.
Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.) If the plaintiff
does not make such a showing, summary judgment in favor of the
defendant is appropriate. In order to obtain a summary
judgment, “all that the defendant need do is to show that the
plaintiff cannot establish at least one element of the cause of
action . . . . [T]he defendant need not himself conclusively negate
any such element . . . .” (Id. at p. 853, fn. omitted.) We review

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the trial court’s grant of summary judgment de novo and decide
independently whether the facts not subject to triable dispute
warrant judgment for the moving party as a matter of law. (Intel
Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348; see Code Civ.
Proc., § 437c, subd. (c).)
The California Supreme Court in Reid v. Google, Inc. (2010)
50 Cal.4th 512, 535, left open the question as to whether a trial
court’s ruling on objections to evidence supporting or opposing a
summary judgment motion should be reviewed de novo or for an
abuse of discretion. Appellate courts are divided on this issue.
(Compare Serri v. Santa Clara University (2014) 226 Cal.App.4th
830, 852 [applying abuse of discretion standard] with Pipitone v.
Williams (2016) 244 Cal.App.4th 1437, 1451 [de novo review].)
The weight of authority, however, supports an abuse of discretion
standard of review (see, e.g., Serri, at p. 852; Carnes v. Superior
Court (2005) 126 Cal.App.4th 688, 694; Walker v. Countrywide
Home Loans, Inc. (2002) 98 Cal.App.4th 1158, 1169), and we
apply that standard here.
B. Evidentiary rulings
Rulings on evidentiary objections based on lack of
foundation or conclusory and speculative testimony are within
the trial court’s sound discretion. (Alexander v. Scripps Memorial
Hospital La Jolla (2018) 23 Cal.App.5th 206, 226.) A trial court
abuses its discretion only if its ruling is “‘“so irrational or
arbitrary that no reasonable person could agree with it.”’”
(Sanchez v. Kern Emergency Medical Transportation Corp. (2017)
8 Cal.App.5th 146, 154.) The appellant has the burden on appeal
of establishing such an abuse of discretion. (Ibid.)
Plaintiff fails to establish any abuse of discretion in the
trial court’s evidentiary rulings. Declarations in summary

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judgment proceedings must set forth admissible evidence as to
which the declarant is competent to testify based on personal
knowledge, not legal conclusions or speculation without
foundation. (Code Civ. Proc., § 437c, subd. (d).) A declaration
that is not based on personal knowledge or that states legal
conclusions without evidentiary facts must be disregarded.
(Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1119-
1120 (Guthrey).)
Plaintiff’s expert declarations are not based on personal
knowledge or evidentiary facts. The stated opinions are also
vague. In paragraph 7 of his declaration, Koetting states that
“there was a stopping sight distance of less than 250 ft at times
and places and less than 100 ft at times and places on the night
of the collision.” He does not, however, explain how he measured
those distances, or at what times and places those sight distances
applied. Ruzak’s declaration reiterates Koetting’s statements
concerning sight distances, but provides no criteria for measuring
those distances. Both Ruzak and Koetting state in their
declarations that overgrown tree foliage obstructed signs on
Montrose Avenue and that parked cars impeded the view of
motorists, but neither expert states whether he had knowledge of
those conditions at the time of the accident. Ruzak’s and
Koetting’s declarations fail to lay the foundation for their
opinions, and the trial court did not abuse its discretion by
sustaining the County’s evidentiary objections on that basis.
(Guthrey, supra, 63 Cal.App.4th at pp. 1119-1120.)
After the trial court issued its tentative ruling on the
summary judgment motion, including its evidentiary rulings,
plaintiff filed, minutes before the hearing on the motion, a
request for a continuance. The purpose of the continuance was to

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have the trial court consider a supplemental declaration by
Koetting stating the basis for his sight distance measurements.
The supplemental declaration states that Koetting’s sight
distances were premised on the following hypothetical
assumptions: (1) plaintiff was starting to enter the crosswalk
when Chang’s vehicle first came into view, (2) Chang’s view of
plaintiff was obstructed by one or more parked vehicles, and (3)
the parked vehicle was at least eight feet wide. As the trial court
noted, these factual assumptions are inconsistent with plaintiff’s
deposition testimony. Plaintiff testified that he was halfway
through the crosswalk, in the left turn lane, when Chang’s
vehicle first came into view. Admissions or concessions made
during the course of discovery control over contrary declarations
filed in opposition to a motion for summary judgment. (D’Amico
v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21-22; Visueta
v. General Motors Corp. (1991) 234 Cal.App.3d 1609, 1613.) The
trial court did not abuse its discretion by disregarding Koetting’s
untimely supplemental declaration that conflicted with plaintiff’s
deposition testimony.
Garrett v. Howmedica Osteonics Corp. (2013) 214
Cal.App.4th 173, which states that an expert declaration
opposing summary judgment should be liberally construed, does
not allow courts to relax the rules of evidence when determining
the admissibility of an opposing declaration. Only admissible
evidence may be considered when determining whether a triable
issue exists. (Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th
755, 761.)

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 C. Dangerous condition on public property
1. Applicable legal principles
A public entity such as the County is not liable for an
injury arising out of an act or omission of the public entity or its
employees except as provided by statute. (Gov. Code, § 815, subd.
(a).) The sole statutory basis for imposing liability on the County
as a property owner is Government Code section 835. (Cerna v.
City of Oakland (2008) 161 Cal.App.4th 1340, 1347.) That
statute “‘prescribes the conditions under which a public entity
may be held liable for injuries caused by a dangerous condition of
public property. [Citation.] Section 835 provides that a public
entity may be held liable for such injuries “if the plaintiff
establishes [(1)] that the property was in a dangerous condition
at the time of the injury, [(2)] that the injury was proximately
caused by the dangerous condition, [and] [(3)] that the dangerous
condition created a reasonably foreseeable risk of the kind of
injury which was incurred.” In addition, the plaintiff must
establish [(4)] that either: (a) “[a] negligent or wrongful act or
omission of an employee of the public entity within the scope of
his employment created the dangerous condition . . . ,” or (b)
“[t]he public entity had . . . notice of the dangerous condition . . . a
sufficient time prior to the injury to have taken measures to
protect against the dangerous condition.”’” (Thimon v. City of
Newark (2020) 44 Cal.App.5th 745, 753 (Thimon).)
A “dangerous condition” is defined as “a condition of
property that creates a substantial (as distinguished from a
minor, trivial or insignificant) risk of injury when such property
or adjacent property is used with due care in a manner in which
it is reasonably foreseeable that it will be used.” (Gov. Code,
§ 830.) Public property may be considered to be in a dangerous

9
condition “‘because of the design or location of the improvement,
the interrelationship of its structural or natural features, or the
presence of latent hazards associated with its normal use.’”
(Bonanno v. Central Contra Costa Transit Authority (2003) 30
Cal.4th 139, 149.)
The failure to provide traffic or warning signals, signs, or
markings does not constitute a “dangerous condition” for which a
public entity may be liable when the allegedly dangerous
condition exists solely because of the failure to provide a traffic
device or street marking. (Washington v. City and County of San
Francisco (1990) 219 Cal.App.3d 1531, 1534-1535.) Government
Code section 830.4 states: “A condition is not a dangerous
condition within the meaning of this chapter merely because of
the failure to provide regulatory traffic control signs, stop signs,
yield right-of-way signs, or speed restriction signs, as described
by the Vehicle Code, or distinctive roadway markings as
described in Section 21460 of the Vehicle Code.” Government
Code section 830.8 similarly provides:
“Neither a public entity nor a public employee is
liable under this chapter for an injury caused by the
failure to provide traffic or warning signals, signs,
markings or devices described in the Vehicle Code.
Nothing in this section exonerates a public entity or
public employee from liability for injury proximately
caused by such failure if a signal, sign, marking or
device (other than one described in Section 830.4)
was necessary to warn of a dangerous condition
which endangered the safe movement of traffic and
which would not be reasonably apparent to, and
would not have been anticipated by, a person
exercising due care.”

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 The existence of a dangerous condition is ordinarily a
question of fact but can be decided as a matter of law if a court,
viewing the evidence most favorably to the plaintiff, determines
“that the risk created by the condition was of such a minor,
trivial or insignificant nature in view of the surrounding
circumstances that no reasonable person would conclude that the
condition created a substantial risk of injury when such property
or adjacent property was used with due care in a manner in
which it was reasonably foreseeable that it would be used.” (Gov.
Code, § 830.2.)
2. The County met its prima facie burden of
establishing no dangerous condition
The County met its initial burden of showing there was no
dangerous condition. It presented evidence that multiple signs
and symbols warning drivers of a pedestrian crossing were
painted on the westbound lanes of Montrose Avenue and were
posted on the roadside facing westbound traffic within a block of
the marked crosswalk and at the crosswalk itself, which was
painted with white, reflective paint. The County also presented
evidence that on October 12 and November 2, 2017, it inspected
Montrose Avenue in the ordinary course of business and
pursuant to Department of Public Works protocol and found no
conditions requiring maintenance. In 2014 and again in 2016, in
response to public requests about the crosswalk, County
engineers investigated the condition of the roadway, conducted
radar speed checks, manual traffic counts, and a reviewed
existing signage and determined that County guidelines for
installing warning lights, flashing beacons, or multi-way stop
controls were not met.

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 The County also presented the declaration of its expert,
Rock Miller, who conducted site inspections and measured the
sight distances available to a pedestrian proceeding northbound
in the crosswalk and a motorist traveling westbound toward the
crosswalk. Miller opined that “[a] pedestrian and motorist would
be able to see each other readily with no obstructions to their line
of sight, if the pedestrian was standing on the southeast corner of
the intersection and the vehicle was approaching from a distance
of approximately 320 feet or less.” Miller further opined that the
sight distance from the location where Chang’s vehicle struck
plaintiff (in the crosswalk in front of the westbound left turn lane
of Montrose Avenue) to a westbound approaching motorist would
be approximately 500 feet. Miller compared this 500 foot sight
distance with guidelines set forth in the CalTrans Highway
Design Manual, which suggests minimum sight distances as
design guidelines for new construction. The CalTrans manual
suggests a distance of 250 feet for a 35 mph speed zone (the
applicable speed limit on Montrose Avenue and the speed at
which Chang’s vehicle was traveling), a suggested distance of 300
feet for 40 mph, and a suggested distance of 500 feet for 55 mph.
Miller stated that although one of the pedestrian warning signs
near the crosswalk (the PED XING sign facing westbound traffic
on the right side of the crosswalk) may have been partially
obscured by a tree, there were multiple other warning signs and
symbols alerting approaching motorists to the crosswalk. Chang,
moreover, admitted that he was familiar with the area and knew
of the presence of the crosswalk.
The County also presented evidence that it had no notice of
any dangerous condition because there had been no reported
traffic accidents at the subject location during the nine years

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preceding plaintiff’s accident. The absence of prior similar
incidents supports the inference that drivers exercising due care
would not have caused such an accident. (Thimon, supra, 44
Cal.App.5th at p. 756.)
The County’s prima facie showing in this case is similar to
that made by the defendant in Thimon, supra, 44 Cal.App.5th
745, which the parties addressed in supplementing briefing in the
trial court. The plaintiff in Thimon was on her way to school at
7:30 a.m. when she reached a crosswalk. That crosswalk, like the
one at issue here, was located at an uncontrolled intersection on a
two-way, four-lane roadway with an additional turning lane in
the center. The plaintiff waited for traffic to abate before
entering the crosswalk and was struck by a vehicle
approximately six seconds later. The motorist, who was driving
at a speed within the posted limit, did not see the plaintiff
because of glare from the morning sun. (Id. at p. 748.) The
plaintiff alleged the crosswalk was a dangerous condition for a
host of reasons, including placement of the crosswalk in a four-
lane roadway with a 45 mph speed limit; failure to follow
recommended standards for the location and design of the
crosswalk; and failure to install proper signage, traffic signals,
and controls such as a “‘blinking yellow arterial to warn drivers
of the impending crosswalk’” or “‘pedestrian actuated
mechanisms to alert a driver of a pedestrian’s use of the
crosswalk.’” (Id. at p. 758.) The city moved for summary
judgment, presenting evidence that the intersection had a
crosswalk painted with white lines; signs warning of pedestrians
were installed on the approach to the intersection; the roadway
was flat and had no blind corners or vegetation that would
obstruct a motorist’s view of a pedestrian in the intersection;

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although the sun impeded the view of the motorist who struck
the plaintiff, the motorist was aware of the glare well before he
approached the intersection; and there was no history of
collisions involving pedestrians at the crosswalk in the 10 years
preceding the plaintiff’s accident. (Id. at p. 756.) Both the trial
and appellate courts in Thimon determined that the city had met
its prima facie burden of demonstrating no dangerous condition.
(Id. at p. 758.) The County’s showing in this case is similar to
that in Thimon, and we conclude that the evidence demonstrates,
prima facie, that no dangerous condition existed.
Plaintiff attempts to distinguish Thimon by arguing that
the court in that case rejected the theory “that an intersection on
a heavily travelled thoroughfare is made dangerous by the type
or existence of crosswalk markings, the lighting conditions, or the
lack of traffic signals or other devices” (Thimon, supra, 44
Cal.App.5th at p. 763), whereas plaintiff’s theory of liability is
based on “visual obstruction caused by the uphill curvature of
Montrose Avenue . . . along with other conditions.” Plaintiff’s
theory is unsupported, however, by any admissible evidence. The
trial court excluded his experts’ opinions on sight distances and
visual obstructions for lack of foundation. Plaintiff’s unspecified
“other conditions” are insufficient grounds for distinguishing
Thimon.
3. Plaintiff failed to raise a triable issue of
material fact
Because the County met its initial burden of demonstrating
the absence of a dangerous condition, the burden shifted to
plaintiff to raise a triable issue of material fact to the contrary.
Plaintiff failed to do so.

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 A principal argument plaintiff raises on appeal is that
limited or obstructed sight distances for pedestrians entering the
crosswalk created a dangerous condition. He contends the trial
court improperly focused on sight distances applicable to
approaching motorists such as Chang and on the incorrect factual
assumption that plaintiff was in the middle of the road when
Chang’s vehicle appeared. Plaintiff’s argument is flawed for
several reasons.
First, plaintiff did not plead this theory of liability in his
complaint. Rather, the complaint alleges that “restricted sight
lines for the cars traveling uphill or downhill on Montrose
Avenue” constituted a dangerous condition. The complaint
further alleges that Chang “did not see [plaintiff] until his vehicle
was several feet from [plaintiff].” There are no allegations of
restricted sight lines for pedestrians. Claims framed by the
pleadings limit the scope of the issues properly addressed in a
summary judgment motion. (Howard v. Omni Hotels
Management Corp. (2012) 203 Cal.App.4th 403, 421; see Conroy
v. Regents of University of California (2009) 45 Cal.4th 1244,
1250 [pleadings set the boundaries of the issues to be resolved in
a summary judgment proceeding].) A defendant moving for
summary judgment has the burden of negating only those
theories of liability alleged in the complaint; the moving party
need not address theories not included in the pleadings. (Nativi
v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261,
290 (Nativi); California Bank & Trust v. Lawlor (2013) 222
Cal.App.4th 625, 637, fn. 3 [“A party may not oppose a summary
judgment motion based on a claim, theory, or defense that is not
alleged in the pleadings.”].)

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 The County presented evidence, in any event, refuting
plaintiff’s theory of liability on appeal. The County’s expert,
Miller, opined that “[a] pedestrian and motorist would be able to
see each other readily with no obstructions to their line of sight, if
the pedestrian was standing on the southeast corner of the
intersection and the vehicle was approaching from a distance of
approximately 320 feet or less.” Plaintiff’s theory is also
contradicted by his own deposition testimony that he was in the
middle of the crosswalk, and not just stepping off the curb onto
Montrose Avenue, when Chang’s vehicle first appeared.
Finally, plaintiff’s theory of liability is unsupported by
admissible evidence. His experts’ opinions on restricted sight
distances and obstructions were excluded for lack of foundation.
Summary judgment was properly granted on plaintiff’s sole
cause of action for dangerous condition on public property.
4. The County has signage immunity
Summary judgment was also properly granted based on the
County’s immunity under Government Code sections 830.4 and
830.8.
As a matter of law, the County is immune from liability
based on the absence of traffic signals or proper signs for
pedestrian safety unless a signal or sign “was necessary to warn
of a dangerous condition which endangered the safe movement of
traffic and which would not be reasonably apparent to, and would
not have been anticipated by, a person exercising due care.”
(Gov. Code, § 830.8.) Plaintiff’s claim that the intersection was
dangerous because of the uphill curvature of the road, the length
of the crosswalk, obstructions caused by foliage, utility poles,
“and other factors” was unsupported by admissible evidence.
Rather, the uncontroverted evidence shows there was a 500-foot

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sight distance from plaintiff’s position in the middle of the
crosswalk when the accident occurred and Chang’s westbound
approaching vehicle. Summary judgment was properly granted
in the County’s favor on the alternative ground of immunity
under Government Code sections 830.4 and 830.8.
II. New trial motion
Plaintiff challenges the denial of his motion for a new trial
based on newly discovered evidence. We review the order
denying plaintiff’s new trial motion for abuse of discretion.
(Richardson v. Superior Court (2008) 43 Cal.4th 1040, 1047.) “‘A
trial court will be found to have abused its discretion only when it
has “‘exceeded the bounds of reason or contravened the
uncontradicted evidence.’”’” (Id. at p. 1048.) Plaintiff fails to
establish any abuse of discretion. His reliance on an undated
design plan indicating the subject crosswalk should not be
restored is insufficient to contravene the undisputed evidence
that the crosswalk was not a dangerous condition at the time of
the accident.
III. Attorney fees
A. Applicable law and standard of review
Code of Civil Procedure section 1038 states: “In any civil
proceeding under the Government Claims Act . . . , the court,
upon motion of the defendant or cross-defendant, shall, at the
time of the granting of any . . . motion for judgment under Section
631.8 . . . , 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

17
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.”
A motion for fees under Code of Civil Procedure section
1038 must be made before entry of judgment. Subdivision (c) of
the statute provides: “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).)
Code of Civil Procedure section 1038 permits a public entity
to recover costs, including attorney fees, from a plaintiff who files
a frivolous civil action under the California Tort Claims Act (Gov.
Code, § 900 et seq.) after a defendant prevails on a motion for
summary judgment, directed verdict, or nonsuit. (Code Civ.
Proc., § 1038; Kobzoff v. Los Angeles County Harbor/UCLA
Medical Center (1998) 19 Cal.4th 851, 853 (Kobzoff).) A court
awarding fees under Code of Civil Procedure section 1038 must
“‘determine whether or not the plaintiff . . . brought the
proceeding with reasonable cause and in the good faith belief that
there was a justi[f]iable controversy under the facts and law
which warranted the filing of the complaint.’” (Carroll v. State of
California (1990) 217 Cal.App.3d 134, 140.) “Reasonable cause”

18
is an objective standard which asks whether any reasonable
attorney would have thought the claim tenable. (Ibid.)
“‘Good faith, or its absence, involves a factual inquiry into
the plaintiff’s subjective state of mind [citations] . . . . A
subjective state of mind will rarely be susceptible of direct proof;
usually the trial court will be required to infer it from
circumstantial evidence. Because the good faith issue is factual,
the question on appeal will be whether the evidence of record was
sufficient to sustain the trial court’s finding.’” (Clark v. Optical
Coating Laboratory, Inc. (2008) 165 Cal.App.4th 150, 183
(Clark).)
“Reasonable cause” under Code of Civil Procedure section
1038 “is synonymous with the term ‘probable cause’ in malicious
prosecution law.” (Clark, supra, 165 Cal.App.4th at p. 183.)
“[P]robable cause to bring an action does not depend upon it
being meritorious, as such, but upon it being arguably tenable,
i.e., not so completely lacking in apparent merit that no
reasonable attorney would have thought the claim tenable.”
(Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 824.)
“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.” (Kobzoff, supra, 19 Cal.4th
at p. 856.) The County was required to show not merely that it
won at the summary judgment stage, but that plaintiff’s claim
was one that no “‘“reasonable attorney would have thought . . .
tenable. . . .”’” (Knight v. City of Capitola (1992) 4 Cal.App.4th
918, 932 (Knight), disapproved on another ground by Reid v.
Google, Inc., supra, 50 Cal.4th at p. 532, fn. 7.)

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 “The standard of review of an award of attorney fees under
Code of Civil Procedure section 1038 is both de novo and
substantial evidence. The ‘reasonable cause’ prong is reviewed de
novo, and the ‘good faith’ prong is reviewed for substantial
evidence.” (Austin B. v. Escondido Union School Dist. (2007) 149
Cal.App.4th 860, 887-888.)
B. Timeliness of motion
Plaintiff argues on appeal, as he did in the trial court
below, that the County’s motion under Code of Civil Procedure
section 1038 was untimely because it was not filed until after
entry of judgment. Subdivision (c) of the statute states that
“[t]his section shall be applicable only on motion made before the
discharge of the jury or entry of judgment . . . .” (Code Civ. Proc.
§ 1038, subd. (c).) Courts have interpreted this statutory
language to require the motion 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 & Power (2002) 97
Cal.App.4th 253, 259.)
The trial court found that the County’s postjudgment filing
of its motion for fees under Code of Civil Procedure section 1038
did not preclude the court from considering the motion because
the County had requested fees under section 1038 in its
October 23, 2019 notice of motion and motion for summary
judgment and had discussed its entitlement to such fees in its
accompanying memorandum of points and authorities. The trial
court declined to determine the propriety of the fee request when
it granted the summary judgment motion on March 11, 2020.
After judgment was entered on March 24, 2020, the County
renewed its request for fees in a postjudgment motion filed
pursuant to Code of Civil Procedure section 1038.

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 The trial court was not prohibited from considering the
County’s motion for fees under Code of Civil Procedure section
1038. The statute does not prohibit a court from considering a
postjudgment motion for fees. Plaintiff here had both notice of
and the opportunity to dispute the County’s asserted entitlement
to fees under Code of Civil Procedure section 1038 when opposing
the County’s summary judgment motion and again in the
County’s postjudgment section 1038 motion. Because we
conclude the trial court was not prohibited from considering the
County’s postjudgment motion under Code of Civil Procedure
section 1038, we address the merits of the County’s appeal.
C. Good faith
There is substantial evidence in the record to support the
trial court’s determination that plaintiff acted in a good faith
belief that there was a “‘justifiable controversy under the facts
and law.’” (Kobzoff, supra, 19 Cal.4th at p. 864.) In a declaration
submitted in opposition to the County’s motion for attorney fees,
plaintiff’s counsel stated that based on his 15 years of experience
in handling dangerous condition on public property cases, he
believed plaintiff’s case was meritorious after considering citizen
complaints about the crosswalk, the physical conditions of the
area, expert opinions, and discovery produced in the action. The
trial court found the declaration to be credible, and the court’s
finding of good faith is supported by substantial evidence.
D. Reasonableness
The County argues that plaintiff did not have reasonable
cause because the allegations of his complaint were at variance
with the evidence and because he identified no actual defect in
the roadway that caused his accident. Based on our review of the
record as a whole, including the declaration of plaintiff’s counsel,

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we do not conclude as a matter of law that plaintiff lacked
reasonable cause in maintaining his action. (Knight, supra, 4
Cal.App.4th at p. 932.)

DISPOSITION
The judgment is affirmed, as is the order denying the
motion for attorney fees. Each side is to bear their own costs of
appeal.

________________________
CHAVEZ, J.

We concur:

________________________
LUI, P. J.

________________________
HOFFSTADT, J.

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