Filed 9/14/22 Burkot v. County of L.A. CA2/2

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

ANDREW BURKOT,

Plaintiff and Appellant,

v.

COUNTY OF LOS ANGELES,

Defendant and Appellant.

 B306244

 (Los Angeles County

 Super. Ct. No. BC714061)

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.

* * * * * *
2

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 eastwest. 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 
3

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 
4

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.
5

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 
6

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 
7

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 
8

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.)
9

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 
10

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.”
11

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.
12

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 
13

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 fourlane 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; 
14

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.
15

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.”].)
16

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 
17

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 
18

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” 
19

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.)
20

“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.
21

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, 
22

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.