Wedgeworth v. City of Newport Beach CA4/3

Filed 2/11/15 Wedgeworth v. City of Newport Beach CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

SANDY WEDGEWORTH et al.,

Plaintiffs and Respondents, G048902

v. (Super. Ct. No. 30-2011-00493787)

CITY OF NEWPORT BEACH et al., OPINION

Defendants and Appellants.

Appeal from an order of the Superior Court of Orange County, William M. Monroe, Judge. Affirmed. Ferguson, Praet & Sherman, Peter J. Ferguson, Allen Christiansen; Pollak, Vida & Fisher and Daniel P. Barer for Defendants and Appellants. Law Offices of Andrew A. Smits and Andrew A. Smits for Plaintiffs and Respondents. * * *

INTRODUCTION This appeal boils down to whether, in making a motion for attorney fees and expert fees under Code of Civil Procedure section 1038 (section 1038), a public entity is required to support its motion with evidence, or at least citations to the trial court’s record. The public entity here, the City of Newport Beach (the City), contends that it met its burden on the section 1038 motion by pointing to the entirety of the record, from which the trial court should have been able to determine whether plaintiffs brought and maintained the lawsuit in good faith, and had reasonable cause to initiate and maintain the lawsuit. We reject the City’s contention. We further conclude the trial court did not err, based on the evidentiary record before it, in determining plaintiffs brought and maintained the action in good faith and with reasonable cause, and affirm the trial court’s order denying the City’s section 1038 motion. As we explain, the City’s section 1038 motion and this appeal are without merit and close to frivolous.

STATEMENT OF FACTS AND PROCEDURAL HISTORY William Robert Wedgeworth (William) committed suicide while in the custody of the City’s police department. William’s wife, Sandy Wedgeworth (Sandy), and his surviving children (collectively, plaintiffs) sued the City and several of its police officers (collectively, defendants) for negligence and related causes of action. The trial court granted defendants’ motion for summary judgment, and judgment was entered against plaintiffs. (The judgment is the subject of a related appeal, case No. G048784.) After the motion for summary judgment was granted, the City filed a motion for an award of attorney fees and expert witness fees under section 1038, and defendants filed a separate motion for sanctions and attorney fees under Code of Civil Procedure section 128.7. The trial court denied both motions. Defendants filed a timely notice of appeal from both orders; on appeal, the City challenges only the issue of the trial court’s denial of attorney fees and expert witness fees under section 1038.