Dudman v. State

Opinion

FEINBERG, J. Plaintiff Dudman was allegedly injured when he struck a guy wire which stretched across a street in San Francisco. He filed suit naming several defendants, including the State of California.

The state moved for summary judgment and defense costs under Code of Civil Procedure section 1038.1 The trial court rendered summary judgment [619]and found that Dudman did not bring this action against the state in good faith and with reasonable cause within the meaning of section 1038. The judgment denies the state’s request for defense costs, however, “for the reason that [the state’s] moving papers do not contain sufficient information to enable the Court to determine the amount of defense costs. [The state’s] request to file a further declaration to enable the Court to determine defense costs is also denied.”

The state appeals from the portion of the judgment which denies defense costs under section 1038.

Evidence of Defense Costs

The state’s moving papers do not include a valuation of defense costs. There is, however, sufficient information from which to fix a costs figure. “The California courts have repeatedly held that testimony or other direct evidence of the reasonable value of attorney’s services need not be introduced because such evidence is necessarily before the trial court which hears the case. [Citations.] The knowledge and experience of the trial judge afford a sufficient basis for fixing the amount of a lawyer’s fee, even though there was no specific evidence on the subject. [Citations.]” Frank v. Frank (1963) 213 Cal.App.2d 135, 137 [28 Cal.Rptr. 687], See also Clejan v. Reisman (1970) 5 Cal.App.3d 224, 241 [84 Cal.Rptr. 899].) The same is true as to other items of defense costs including those listed in subdivision (b) of section 1038.2

[620]The judge’s disinclination to glean a costs figure from the record coupled with his refusal to allow the state time to prepare a costs declaration effectively precluded an award under section 1038. This does not comport with the mandatory language of the statute: Under subdivision (a), once it has been determined that suit was not brought in good faith and with reasonable cause, as occurred here, the amount of defense costs is an issue which “shall be decided . . . and the court shall render judgment” awarding costs to the moving party. (Italics added.) The statutory mandate is emphasized by subdivision (b) which authorizes the court to conduct a separate trial on the issue of defense costs if necessary.