Burkot v. County of L.A. CA2/2 ( 2022 )


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  • Filed 9/14/22 Burkot v. County of L.A. CA2/2
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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    not been certified for publication or ordered published for purposes of rule 8.1115.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
    SECOND APPELLATE DISTRICT
    DIVISION TWO
    ANDREW BURKOT,                                             B306244
    Plaintiff and Appellant,                          (Los Angeles County
    Super. Ct. No. BC714061)
    v.
    COUNTY OF LOS ANGELES,
    Defendant and Appellant.
    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.
    ******
    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 east-
    west. 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
    2
    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
    3
    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.
    4
    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
    5
    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
    6
    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
    7
    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.)
    8
    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
    9
    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.”
    10
    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.
    11
    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
    12
    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 four-
    lane 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;
    13
    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.
    14
    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.”].)
    15
    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
    16
    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
    17
    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”
    18
    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.)
    19
    “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.
    20
    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,
    21
    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.
    22