2016-00200712-CU-PO

Ahryah Ward vs. St. Hope Public Schools

Nature of Proceeding: Motion for Defense Fees

Filed By: Spinelli, Domenic D.

Defendants Sacramento City Unified School District, Andrea Nava, Michael Kirkendoll

and Yanely Hinojosa’s (collectively “Defendants”) motion for defense fees pursuant to CCP §1038 is ruled upon as follows.

Overview

In this action, Plaintiffs Ahryah Ward (“Ahryah”), a minor, by and through her guardian ad litem, Kyra Baker, and her parents Shannon and Willis Ward (the “Wards”) allege

that in November and December 2015, Ahryah was subjected to inappropriate and abusive sexual contact by two fellow female students enrolled in the afterschool program at St. Hope Public School #7.

On 9/11/2018, the Court granted Defendants’ motion for summary judgment. Specifically, the Court found that it was undisputed that Ahryah admitted to a social worker with Child Protective Services that she was never touched by any of her friends at school. Her admission was reported in a January 20, 2016, Child Protective Services Report (“Report”). The Court overruled Plaintiffs’ objections to the Report. Plaintiffs attempted to dispute the fact with deposition testimonies from different adults to whom the three children purportedly told that touching took place in the bathroom. The Court, however, sustained Defendants’ objections to the evidence as they were based on hearsay to which no exception applied. Plaintiffs also proffered three documents. The Court sustained Defendants’ objections two of the documents, and found that the third document was not responsive to Defendants’ undisputed material fact.

Pursuant to CCP §1038, Defendants seek $107,047 in defense fees against Plaintiffs.

Defendants’ request for judicial notice is granted.

Legal Standard

CCP §1038 provides, in part:

[i]n 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 summary judgment . . . determine whether or not 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. . . . 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.

Section 1038 permits trial courts to award defendants their costs and fees on a finding that plaintiffs did not bring or maintain the action either with reasonable cause or in the good faith belief in a “justifiable controversy under the facts and law.” (Kobzoff v. Los Angeles County Harbor/UCLA Medical Center (1998) 19 Cal. 4th 851, 853.)

“Good faith, or its absence, involves a factual inquiry into the plaintiff’s subjective state of mind.” (Knight v. City of Capitola (1992) 4 Cal.App.4th 918, 932 [emphasis in original].) “Reasonable cause is to be determined objectively, as a matter of law, on the basis of the facts known to the plaintiff when he or she filed or maintained the action. Once what the plaintiff (or his or her attorney) knew has been determined, or

found to be undisputed, it is for the court to decide ‘whether any reasonable attorney would have thought the claim tenable ….’” (Id. [emphasis in original][citations omitted].)

Analysis

Defendants move for $107,047 in defense costs for Plaintiffs bringing the action when there was no evidence that Ahryah was injured. Defendants point to the Report in which Ahryah admitted that the events did not occur. Defendants further insist that Ahryah’s parents knew of Ahryah’s statement in the Report, thereby foreclosing their cause of action for intentional infliction for emotional distress.

Defendants alternatively move for fees for Plaintiffs maintaining the action without reasonable clause. Defendants seek $49,684.50 in fees from May 30, 2018 to October 22, 2018. By May 30, 2018, the Juvenile Court granted the disclosure of the Report, and Plaintiffs’ counsel indicated that they already knew of the Report and had previously reviewed it. (Declaration of Lynn Garcia.)

Here, the Court cannot conclude that Plaintiffs did not have either reasonable cause or good faith belief in bringing or maintaining the action. Here, the children purportedly told different adults that touching took place in the bathroom. Thus, there was a reasonable basis for Plaintiffs to bring the action and maintain the action (even after the Report was disclosed). Although the Court granted Defendants’ motion for summary judgment because Plaintiffs lacked admissible evidence to create a triable issue of material fact, Defendants proffer no legal authority that Plaintiffs’ lack of admissible evidence in opposition to a motion for summary judgment is sufficient to award defense fees pursuant to CCP §1038.

Accordingly, the motion is DENIED.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.