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Abbassi v. Regents of the University of California2/28/2003
for summary judgment may be awarded defense costs if the court determines that the action was brought without either objectively reasonable cause or a good faith belief there was a justifiable controversy. (Kobzoff v. Los Angeles County Harbor/UCLA Medical Center (1998) 19 Cal.4th 851, 853, 856, 862, 863-864 (Kobzoff).) In the present case, the trial court did not specifically rule with respect to either of these qualifications, and plaintiff contends that reversal is required for this reason. But we perceive that the ruling must have been based on a determination of lack of reasonable cause. Defendant's moving papers made no claim of bad faith, nor does defendant do so presently. And the court's ruling specifically referred to plaintiff's having sued defendant despite the release. The position of both defendant and the court clearly was that plaintiff had not filed and maintained his case against defendant with reasonable cause.
We review that determination de novo (Knight v. City of Capitola (1992) 4 Cal.App.4th 918, 932), and we do not agree with it. Code of Civil Procedure section 1038 is addressed at litigation that is not only unmeritorious but frivolous. (Kobzoff, supra, 19 Cal.4th at p. 857.) Similar to lack of probable cause in malicious prosecution, and frivolousness in a sanctionable appeal, absence of reasonable cause under section 1038 signifies that a reasonable attorney would not have thought the case tenable. (Kobzoff, supra, at p. 857; Knight, supra, at p. 932; see In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.) In this case, the primary basis for the charge and conclusion of no reasonable cause was the release that plaintiff signed. Yet, as we have explained, whether the release covered plaintiff's claim actually presents an uncertain question. A reasonable attorney could well have undertaken and continued to litigate this case while challenging the applicability of the release. Nor are there any other grounds to hold this case to have been without reasonable cause, i.e., frivolous.
Accordingly, the order awarding attorney fees must be reversed. Moreover, defendant's request for allowance of further attorney fees for this appeal must also be denied.
DISPOSITION
The judgment is affirmed. The order awarding attorney fees is reversed. The parties shall bear their own costs.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
We concur:
BOLAND, J.
TURNER, J.
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