Laabs v. City of Victorville

HOLLENHORST, Acting P. J.,

Concurring and Dissenting. — I concur with the majority opinion affirming the trial court’s grant of summary judgment in favor of the City of Victorville (City), but am forced to write separately to question the majority’s discussion of the City’s liability as an adjacent property owner, the City’s request for judicial notice, and the City’s motion for attorney fees.

Amanda Laabs (Plaintiff) sued the City and the County of San Bernardino (County), among other parties, as a result of her injuries incurred in an automobile accident on Ridgecrest Road where it intersects with Pebble Beach Drive. Ridgecrest Road is a four-lane north/south roadway. The northbound lanes are owned and controlled by the County. The southbound lanes are owned and controlled by the City. The accident occurred when the northbound vehicle in which Plaintiff was a passenger collided with a westbound left-turning vehicle driven by Dorothy Specter (Specter). Plaintiff alleged that her injuries were caused by a dangerous condition of public property. Both the City and the County moved for summary judgment. The *1278 trial court considered both motions simultaneously. It then granted both motions. Plaintiff appealed.

In Plaintiff’s appeal against the County (Laabs v. County of San Bernardino (May 11, 2007, E039694) [nonpub. opn.] (Laabs)), this court affirmed the granting of summary judgment in favor of the County. Although we found that a triable issue of fact exists as to whether the County was on constructive notice of the sight distance limitation at the intersection and of its dangerousness, we concluded that the County was immune from liability based on its approved plan or design for widening Ridgecrest.

I. City’s Liability for Alleged Dangerous Condition on Adjacent Property

In this appeal, the majority finds that the “present record demonstrates no triable issue of fact as it relates to the applicability of the design immunity.” (Maj. opn., ante, at p. 1268.) Nonetheless, the majority feels compelled to address the issue of whether the City, as the owner of the southbound lanes, can be liable for an accident on the adjacent County-owned property (northbound lanes) because the addition of the southbound lanes increased the dangerousness of crossing through the intersection. More specifically, the majority states that “the issue is whether the City’s liability may be premised on Specter’s attempt to use City property (i.e., the southbound lanes) in combination with the existence of a dangerous condition on the adjacent County property (i.e., the northbound lanes).” (Id. at p. 1259.) The majority concludes there are sufficient facts in the record to create a triable issue regarding imposition of liability on the City.

I disagree.

To begin with, the City is arguing that no dangerous condition existed. At the trial court level, the City argued that the intersection of Ridgecrest and Pebble Beach was not a dangerous condition as a matter of law. Referencing Government Code section 830, subdivision (a), and citing Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434, 439 [ 6 Cal.Rptr.3d 316 ] (Brenner), the City claimed that “[property is not ‘dangerous’ within the meaning of the statutory scheme if the property is safe when used with due care and the risk of harm is created only when foreseeable users fail to exercise due care.” In deciding in favor of the City, the trial court found that the City did not own or control the intersection at the time of the accident. On appeal, Plaintiff acknowledges that liability for a dangerous condition of property is premised upon a showing of ownership or control over the dangerous condition. However, she claims the City admitted in its moving papers that the intersection was jointly controlled by the County and the City. I disagree. *1279 According to the City’s moving papers, the City stated, “The intersection was jointly controlled by both entities, the County independently owned and controlled the northbound direction of the intersection and the City independently owned and controlled the southbound direction of the intersection. The City had no right, duty or ability to do anything to the northbound section of the intersection.” In response, Plaintiff merely argues that the fact that the City only owns the southbound lanes is irrelevant because “[i]t was the City’s expansion of Ridgecrest that exacerbated the dangerousness of the intersection, requiring travelers to expose themselves to oncoming traffic for twice as long when attempting to enter Ridgecrest Road.”

In its responding brief, the City maintains its liability is premised on whether or not it controlled the northbound lanes. Regarding Plaintiff’s claim that the expansion of Ridgecrest Road exacerbated the dangerousness of the intersection, the City aptly notes there was no evidence in the record to support such claim. Plaintiff references the declarations of her engineering experts, Howard Anderson and Robert Crommelin, as well as a resident of the area, Michael Chamberlin. Turning to those declarations, I note that neither expert opined that the widening of the road in 1996 exacerbated or caused the dangerous condition of the intersection. Instead, the expert declarations focused on the sight distance, stopping distance and speed limit for the northbound County-controlled lanes. 1 Likewise, Chamberlin, who declared he had been in three accidents on Ridgecrest Road, failed to attribute the widening of the road by two lanes as the cause.

Nonetheless, Plaintiff attempts to get around this obstacle by arguing that the City may be held liable for an accident which was caused by a dangerous condition on adjacent property. She cites Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 841 [ 206 Cal.Rptr. 136 , 686 P.2d 656 ] (Carson). In Carson , the husband and surviving children of a decedent filed an action after decedent was killed in a car collision at an intersection owned and controlled by the city. (Id. at pp. 836-837.) The plaintiffs alleged that a sign and trees located along one side of the road obstructed the visibility of drivers and created a reasonably foreseeable risk of the kind of injuries which were incurred. (Id. at p. 837.) The city moved for nonsuit, arguing that, even if the sign created a dangerous condition, the city was not statutorily liable because it did not erect the sign, had no notice of the sign’s presence, and there was insufficient evidence of a dangerous condition. (Id. at p. 840.) The trial court granted nonsuit; however, the Supreme Court reversed. Our high court held that the ownership and control of the sign was irrelevant to the question of the city’s liability as the city property at issue was not the sign, but the intersection that was rendered dangerous by erection of the sign. (Id. at *1280 pp. 841-842.) According to the holding in Carson , “Ownership and control of the intersection, not the sign, is the basis of liability . . . .” (Id. at p. 842.) In contrast to the facts in Carson , here, the City did not own or control the northbound lanes. Rather, it owned the southbound lanes. Thus, I find Carson inapplicable.

Faced with this flaw in her argument, in her reply brief Plaintiff argues that “the fact that the City does not own the property where the cars collided does not shield it from dangerous condition liability.” She cites, and discusses for the first time, Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139 [ 132 Cal.Rptr.2d 341 , 65 P.3d 807 ] (Bonanno). The majority relies on Bonanno , and Joyce v. Simi Valley Unified School Dist. (2003) 110 Cal.App.4th 292 [ 1 Cal.Rptr.3d 712 ] (Joyce) in finding that there are sufficient facts in the record to create a triable issue regarding imposition of liability on the City.

In Bonanno , the plaintiff, a bus patron, was struck by a motorist while crossing a dangerous street in a marked crosswalk at an uncontrolled intersection to get to a bus stop. (Bonanno, supra, 30 Cal.4th at p. 145 .) The plaintiff sued Contra Costa County and the transit authority, a public entity, alleging that the district’s bus stop was a dangerous condition of property under Government Code section 835. The transit authority argued that it did not have control over the location of the bus stop because Contra Costa County, which owned the right-of-way where the bus stop was located, had “a veto power over any proposal for a new stop on [the county’s] property.” (Bonanno, supra, 30 Cal.4th at p. 147 .) The Bonanno court rejected the transit authority’s claim that it could not “be liable for an injury occurring on property (the street) it neither owned nor controlled.” (Id. at p. 151.) Instead, it found that the transit authority “owned and controlled its own bus stop, and a condition of that property, its physical situation, caused users of the bus stop to be at risk from the immediately adjacent property.” (Ibid.) The court explained that, regardless of whether the transit authority needed the county’s permission as to locating bus stops, the transit district “enjoyed sufficient sole control over the bus stop to remove it if it was unnecessarily dangerous.” (Id. at p. 147, fn. 2.)

Regarding the applicability of Bonanno , I find the unique facts in that case make it inapplicable in this case. To begin with, the Bonanno court found that it was feasible for the transit authority to move or remove the bus stop. ( Bonanno, supra, 30 Cal.4th 139, 152 .) Here, it is not feasible to relocate the southbound lanes. Moreover, there is no evidence that the City had any control over the location or design of the Pebble Beach entrance to Ridgecrest Road on the County’s property.

*1281 Second, the Bonanno decision was very narrowly decided, addressing only the existence of one aspect of a dangerous condition and assuming the existence of a dangerous condition of the crosswalk. ( Bonanno, supra, 30 Cal.4th 139, 151 , 154—155.) The court found that the location of the bus stop caused users to be at risk from the adjacent dangerous intersection. (Id. at p. 151.) However, the court cautioned: “Our decision here, we emphasize, does not concern the question whether the crosswalk . . . was in fact an unsafe pedestrian route for crossing [the road] .... As the [cjounty, which controlled the intersection, settled with [the] plaintiff before trial, our decision does not in any respect address the liability of a city or county for maintenance of an unsafe crosswalk. To be sure, [the] plaintiff introduced evidence — which the jury apparently found persuasive — showing the DeNormandie crossing was more dangerous than that at Morello, in order to establish that [the transit authority] should have moved its bus stop to Morello. But the sufficiency of that evidence is not before this court. Our order limiting review, quoted earlier in this opinion, assumes the existence of a dangerous crosswalk, posing only the question whether a bus stop may be deemed dangerous because bus users, to reach the stop, must cross at that dangerous crosswalk.” (Id. at pp. 146-147, first, second and fourth italics added, third italics in original.)

Here, I do not begin with the assumption that the intersection constituted a dangerous condition. There are millions of intersections throughout the United States that are similar to the one in this case. As the City noted at the trial level, “Property is not ‘dangerous’ within the meaning of the statutory scheme if the property is safe when used with due care and the risk of harm is created only when foreseeable users fail to exercise due care.” To assume that this intersection was dangerous given the facts of this case would negate the statutory scheme behind Government Code section 830. (Brenner, supra, 113 Cal.App.4th at p. 439 .) It was not the intersection itself that constituted a dangerous condition. Rather, it was the fact that the vehicle (in which Plaintiff was a passenger) was being driven by an individual who failed to use due care. As the majority correctly notes, the trial court merely found the existence of a triable issue of fact as to whether the intersection created a foreseeable risk of injury to members of the motoring public “ ‘using due care.’ ” (Maj. opn., ante, at p. 1260, fn. 8.) Likewise, I do not assume that the addition of the southbound lanes created, or exacerbated, any dangerous condition.

Moreover, the issue to be decided in this case is the opposite of the issue decided in Bonanno. (Brenner, supra, 113 Cal.App.4th at 442 .) Bonanno addressed whether adjacent property (location of a bus stop) was dangerous because of the route (crosswalk on busy road) necessarily traveled by its patrons. In contrast, Plaintiff’s complaint addresses whether the route (northbound lanes) traveled by patrons was dangerous because of the adjacent *1282 property (southbound lanes and the need of Specter’s vehicle to cross the northbound lanes in order to get to the southbound lanes). Bonanno did not address the issue raised by Plaintiff in this case. Again, as I noted above, Bonanno assumed the existence of a dangerous condition of the route traveled by its patrons. Here, at best, there is a triable issue of fact.

Similarly, I do not find Joyce applicable. In that case, the defendant’s liability was based on its “failure to provide adequate safeguards against a known dangerous condition.” (Joyce, supra, 110 Cal.App.4th at p. 300 , italics added.) In Joyce , a student was seriously injured when she was struck by a car while crossing the street to enter the school grounds through an open school yard gate. Finding the facts similar to those in Bonanno , the Joyce court noted that while defendant “did not control the crosswalk, it did control whether an opening in the fence should be made. The open gate was built next to the crosswalk to encourage students to cross at an uncontrolled intersection. It diverted children from a safer, signal-controlled intersection less than 500 feet away. . . . [A] reasonable trier of fact could find that the open gate was a dangerous condition that could have been remedied by simply closing the fence opening and directing students to cross at the signal. [Citation.]” (Joyce, supra, at p. 299 , fn. omitted.) My reasons for finding Bonanno inapplicable equally apply to Joyce . In Joyce , the defendant controlled the opening in the fence, there was no question as to whether the crosswalk constituted a dangerous condition, and the Joyce court did not address the issue raised by Plaintiff.

Given the record before this court, and for the reasons stated above, I disagree with the majority’s conclusion that “liability may be imposed on the City for an alleged dangerous intersection even though the initial impact occurred on County property and the obstructions to visibility existed on the County side of Ridgecrest.” (Maj. opn., ante, at p. 1262.) The City does not own or control the northbound lanes, nor is there any evidence that the expansion of Ridgecrest Road from a two-lane to a four-lane road made the intersection dangerous, or exacerbated any alleged dangerous condition that may exist on the County-controlled northbound lanes. Again, the issue is whether the intersection created a foreseeable risk of injury to members of the motoring public “using due care.” Here, the individual using the intersection was speeding, i.e., he was traveling in excess of 74 miles per hour.

II. City’s Request for Judicial Notice

Regarding the majority’s discussion of the City’s request for judicial notice, I note that my colleagues correctly recognize the procedures and the law governing what evidence may be considered in support of, or opposition to, a motion for summary judgment. However, in the context in which the *1283 City’s motion was brought, argued, and considered, I find that the letter and the spirit of the law governing motions for summary judgment were observed.

Turning to the record, it is clear to me that the City’s liability, if any, is tied to the County’s liability. To that end, I would begin the analysis by considering the City’s request for judicial notice of certain court records. On October 11, 2007, the City requested this court take judicial notice of (1) certain court documents contained in the appellate record of the County’s related case decided by this court (Laabs, supra, E039694), including, but not limited to, various declarations and evidence supporting the County’s motion for summary judgment; (2) the unpublished opinion of this court in Laabs, supra, E039694, issued on May 11, 2007; and (3) a copy of the declarations of McGlade and Ruzak with a minimized copy of exhibit A to those declarations and a minimized copy of exhibit 1 to the notice of lodgment, as submitted to the trial court in support of the City’s motion for summary judgment. The majority granted the City’s request pursuant to Evidence Code sections 452, subdivision (d), and 459, subdivision (a); however, the majority took judicial notice of the “existence of the documents in court files, . . . not. . . the truth of the facts asserted in such documents.” (Maj. opn., ante, at p. 1266.) In support of this decision, the majority cites Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564-1565 [ 8 Cal.Rptr.2d 552 ] (Sosinsky).

The Sosinsky court noted that several cases have cited to, and followed, Jefferson’s California Evidence Benchbook, which explained the meaning of judicial notice; “ ‘A court may take judicial notice of the existence of each document in a court file, but can only take judicial notice of the truth of facts asserted in documents such as orders, findings of fact and conclusions of law, and judgments.’ ” (Sosinsky, supra, 6 Cal.App.4th at p. 1564, quoting 2 Jefferson’s Cal. Evidence Benchbook (Cont.Ed.Bar 2d ed. 1982).) However, the Sosinsky court critically analyzed whether a court may take judicial notice of the truth of a finding of fact and concluded that it cannot. ( Sosinsky, supra, at pp. 1564—1569.) Relying on the Sosinsky holding, the majority declines to take judicial notice of the trial court’s order or findings of fact, as well as this court’s findings and conclusion in our prior opinion in Plaintiff’s related case against the County.

I disagree. Given the unique facts in this case, I would take judicial notice of the trial court’s findings and conclusions with respect to the County, as well as our prior opinion affirming those findings and conclusions. (Kilroy v. State of California (2004) 119 Cal.App.4th 140 [ 14 Cal.Rptr.3d 109 ] (Kilroy).)

In Kilroy , the plaintiffs sued the state and a California Highway Patrol officer claiming a violation of their civil rights and other related torts on the *1284 grounds that the officer wrongly omitted material facts from an affidavit used to obtain a search warrant for their business. (Kilroy, supra, 19 Cal.App.4th at p. 142.) The search produced firearms and resulted in a federal prosecution. The federal judge granted the plaintiffs’ motion to suppress evidence and dismissed the charges. (Ibid.) In the state court action, the plaintiffs requested judicial notice of the federal court’s suppression order. The trial court denied the request and granted summary judgment in favor of the state. (Ibid.) The plaintiffs appealed, arguing that the trial court erred in denying their request for judicial notice. (Ibid. ) On appeal, our colleagues in the Third District held that while the factual findings in the federal order are not a proper subject of judicial notice, they “may be a proper subject of judicial notice if [they] ha[ve] a res judicata or collateral estoppel effect in a subsequent action.” (Id. at p. 148.) Such is the case here.

Nonetheless, the majority points out, “Our sole function ‘is to determine from the submitted evidence whether there is a “triable issue as to any material fact”. . . .’” (Maj. opn., ante, at p. 1266.) Additionally, my colleagues emphasize Plaintiff’s due process right to be informed of the evidence that needs to be disputed in order to defeat the City’s motion. While the evidence submitted by the County was not included in the paperwork offered by the City, the record before this court shows that Plaintiff’s due process right was not overlooked, nor was there any request to limit the submitted evidence to only that offered in the City’s moving papers and Plaintiff’s opposition thereto.

I find that the majority overlooks the context in which both of these motions for summary judgment were heard. Both motions were brought and argued simultaneously. Neither side demanded, or even expected, the trial court to limit its consideration of all of the evidence presented in support of, and in opposition to, each motion when reaching a decision as to either motion. In fact, the City specifically stated that its motion was based upon everything which it had filed, plus “such oral arguments and evidence which the court permits at its hearing on this motion.” Likewise, the County based its motion on “such further oral and documentary evidence as may be presented at the hearing of this motion.” Even Plaintiff stated that her opposition was based upon what she had filed, plus “the pleadings on file with the Court, declarations, depositions and matters of which the Court may take judicial notice, and such argument as may be made at the hearing on this matter.” To that end, at oral argument each party addressed the issues without segregation. In fact, Plaintiff’s arguments against both the County and the City are substantially similar. Many times in her appellate briefs, Plaintiff mistakenly referred to the County when she meant the City.

Clearly, the trial court considered all of the evidence before it without regard as to which party was responsible for submitting such evidence. Given *1285 the nature in which the motions were addressed to the trial court, at one point, the trial court stated: “My tentative management approach is that I’m gonna [vic] vacate the submission on the County and the City’s motion for summary judgment and try that case without a jury. That is the affirmative defense of design immunity. [¶] Now, if everybody has everything that they want to present as evidence in the motions for summary judgment, I will take that as a trial submitted on the declarations; otherwise, I will take whatever additional evidence anybody wants to offer and try that issue at a date that is convenient to all the parties to get ready for that.” In response, Plaintiff’s counsel stated “The plaintiff’s prepared. We’ve submitted everything that we have been given possession of relative to the design immunity.” Following further discussion, however, the County and the City preferred to have a ruling on their respective motions. Nonetheless, everyone contemplated that everything, including evidence and argument offered by any party before the court, could be considered by the court in making its decision.

Furthermore, regarding Plaintiff’s appeal concerning the County, Plaintiff designated a comprehensive record. In this appeal, she “incorporate^] that record by reference . . . pursuant to California Rules of Court, [r]ule 10[b].” In Plaintiff’s reply brief (which was filed after we had filed our opinion in Plaintiff’s appeal involving the County), Plaintiff notes that this court had “found that the intersection’s accident history creates a triable fact question as to whether the County was on notice of the intersection’s condition and dangerousness [Laabs, supra, E039694].” She further notes in a footnote, “This holding is citable under rule 8.1115[b], California Rules of Court, because it is relevant under the doctrine of law of the case.” She then argues that the “same history creates a triable fact question as to notice to the City.” Using Plaintiffs legal reasoning, I am convinced that our prior finding of design immunity as to the County applies equally to the City. (Laabs, supra, E039694; Kilroy, supra, 19 Cal.App.4th at p. 148.)

Finally, to the extent the City failed to provide sufficient evidence of the reasonableness of the design as to the northbound lanes, such failure is due to the fact that no party claimed the City owned or controlled the northbound lanes. According to the pleadings, there was no reason for the City to address an issue (design of the northbound lanes) that did not apply to it. I find that issue was (and is) best addressed by the entity (the County) which owned and controlled those lanes, and thus, is charged with its design.

III. City’s Motion for Attorney Fees

A. Code of Civil Procedure section 1038

After the City won its summary judgment motion, it filed a motion to recover attorney fees and costs under Code of Civil Procedure section 1038. *1286 “Code of Civil Procedure section 1038 ‘ “provides public entities with a protective remedy for defending against unmeritorious litigation.” ’ [Citation.] The statute permits public entities to recover costs, including attorney fees, from a plaintiff who files a frivolous civil action under the California Tort Claims Act after a defendant prevails on a motion for summary judgment, directed verdict, or nonsuit. [Citations.]

“In order to recover fees under Code of Civil Procedure section 1038, the court must ‘ “determine whether or not the plaintiff, . . . brought the proceeding with reasonable cause and in the good faith belief that there was a justiciable controversy under the facts and law which warranted the filing of the complaint.” ’ [Citation.] ‘Reasonable cause’ is an objective standard which asks whether any reasonable attorney would have thought the claim tenable. [Citation.] ‘Thus, before denying a [Code of Civil Procedure] section 1038 motion, a court must find the plaintiff brought or maintained an action in the good faith belief in the action’s justifiability and with objective reasonable cause.’ [Citation.]

“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. [Citation.]” (Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 887-888 [ 57 Cal.Rptr.3d 454 ], italics added.)

Here, as the majority points out, following the October 17, 2005, hearing on the City’s motion for costs and attorney fees, the trial court took the matter under submission. Thereafter, the trial court issued a minute order denying the motion “without prejudice subject to the outcome of the appeal.” The City renewed its motion, explaining that Code of Civil Procedure section 1038, subdivision (c), requires a motion for attorney fees to be brought before entry of judgment or they will be waived. A hearing was held on January 30, 2006. The trial court indicated its preference to deny the motion, not on the merits of the motion, but because an appeal was anticipated. The court again took the matter under submission. On February 10, 2006, the trial court issued a simple order denying the motion for attorney fees with prejudice.

On appeal, the City contends the trial court “abdicated its duty under this statute in refusing to make a ruling on the merits of the City’s motion . . . .” The City argues that the trial court was required “to make a determination of *1287 whether [Plaintiff’s action was brought or maintained both in the good faith belief in the action’s justifiability and with objective reasonable cause. [Citation.]” I agree; however, the majority does not. The majority affirms the trial court’s decision by implying findings necessary to support the ruling. In doing so, the majority discounts the clear language in the statute: “In any civil proceeding under the California Tort Claims Act ... the court, upon motion of the defendant. . . shall, at the time of the granting of any summary judgment . . . under Section 631.8 . . . determine whether or not the plaintiff . . . 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. . . .” (Code Civ. Proc., § 1038, subd. (a), italics added.)

In support of their claim that the trial court was not required to expressly state its findings regarding the issues involved in the City’s motion for attorney fees, and that any findings necessary to support the order are implied in the denial, my colleagues cite the doctrine of implied findings “by which the appellate court is required to infer that the trial court made all factual findings necessary to support the order or judgment. [Citations.]” (Maj. opn., ante, at p. 1271.) The cases cited in support of their use of this doctrine are: In re Marriage ofArceneaux (1990) 51 Cal.3d 1130, 1132-1133, 1137 [ 275 Cal.Rptr. 797 , 800 P.2d 1227 ] (discussing Code Civ. Proc., §§ 632 & 634, the court held that “a litigant who fails to bring to the attention of the trial court alleged deficiencies in the court’s statement of decision waive[s] the right to complain of such errors on appeal, thereby allowing the appellate court to make implied findings in favor of the prevailing party”); Ermoian v. Desert Hospital (2007) 152 Cal.App.4th 475, 494 [ 61 Cal.Rptr.3d 754 ] (discussing Code Civ. Proc., §§ 632 & 634); Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App,4th 42, 58 [ 58 Cal.Rptr.3d 225 ] (Fladeboe) (discussing Code Civ. Proc., §§ 632 & 634); County of Orange v. Barratt American, Inc. (2007) 150 Cal.App.4th 420, 439 [ 58 Cal.Rptr.3d 542 ] (discussing doctrine of implied findings and Fladeboe); and Ensworth v. Mullvain (1990) 224 Cal.App.3d 1105, 1109, 1112 [ 274 Cal.Rptr. 447 ] (Ensworth) (discussing Corp. Code, § 25612 and Code Civ. Proc., § 527.6 with the court holding that statute that authorized an injunction if the judge “ ‘finds by clear and convincing evidence that unlawful harassment exists,’ ” did not “require the court to make a specific finding on the record” prior to issuing injunction, but was satisfied by finding “necessarily implie[d]” by the issuance of injunction itself). None of these cases discuss the actual statute in question.

The majority finds the decision in Ensworth to be instructive on interpreting Code of Civil Procedure section 1038. The Ensworth case involved a patient stalking her psychologist. Following a series of harassing incidents, *1288 the psychologist (Ensworth) sought and obtained a restraining order. ( Ensworth, supra, 224 Cal.App.3d 1105, 1108 .) At the expiration of the order, Ensworth sought a second restraining order. A hearing was held wherein Ensworth testified that the prior order reduced the incidents of harassment, nonetheless, incidents continued to occur. Ensworth provided a letter from her former patient (Mullvain) which stated that she would continue to violate the restraining order, would go to jail, and would do “whatever necessary to continue to have contact with Ensworth ...” (Ibid.) In response, Mullvain testified that she was unable to do her job as a result of the restraining order and thus had lost money and referrals. (Id. at pp. 1108-1109.) During closing argument, Mullvain argued that Ensworth failed to present any evidence on whether she suffered emotional damage. The trial court disagreed, finding that Code of Civil Procedure section 527.6 only required a showing of emotional damage “ ‘to a reasonable person.’ ” ( 224 Cal.App.3d at p. 1109 .) Thus, a second restraining order was issued. (Id. at pp. 1107-1108.)

On appeal, Mullvain claimed, inter alia, that the trial court erred in failing to make the necessary findings under the statute. (Ensworth, supra, 224 Cal.App.3d at p. 1109 .) “[Code of Civil Procedure] [s]ection 527.6 provides a procedure by which a person who has suffered harassment may seek an injunction prohibiting the harassment. In subdivision (b), harassment is defined as ‘a knowing and willful course of conduct directed at a specific person which seriously alarms, annoys, or harasses the person, and which serves no legitimate purpose. The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the plaintiff.’ ” (Ibid.) Subdivision (d) of section 527.6 provides that “ ‘the judge shall receive such testimony as is relevant, and may make an independent inquiry. If the judge finds by clear and convincing evidence that unlawful harassment exists, an injunction shall issue prohibiting the harassment.’ ” ( 224 Cal.App.3d at p. 1112 .) Mullvain complained that the trial court failed to find a continuous course of conduct and emotional distress. (Ibid.) The appellate court rejected the complaint, finding that “[t]he statute does not require the court to make a specific finding on the record that harassment exists, nor does it require specific findings of the statutory elements of harassment as defined in subdivision (b).” (Ibid.) The court held that “the granting of the injunction itself necessarily implies that the trial court found that Mullvain knowingly and willfully engaged in a course of conduct that seriously alarmed, annoyed or harassed Ensworth, and that Ensworth actually suffered substantial emotional distress.” (Ibid.)

Applying the above, my colleagues conclude that just as the Ensworth court necessarily found harassment, so too did the trial court in this case make the determinations of good faith and reasonable cause. The majority *1289 thus finds that the trial court’s unequivocal denial of the City’s motion without expressly stating its findings complies with the statute.

I disagree. Given the language used in Code of Civil Procedure section 1038, the case law interpreting the statute, and the statements in the legislative committee reports concerning the statute’s objects and purposes, I find that the trial court is required to state its findings on the record.

In 1980, the Legislature enacted Code of Civil Procedure section 1038. “In enacting the act which added section 1038 to the Code of Civil Procedure (Assem. Bill No. 3214, introduced by Assemblyman Patrick J. Nolan on Mar. 11, 1980, which became Stats. 1980, ch. 1209, § 1, pp. 4088^-089), the Legislature appears to have intended to discourage frivolous lawsuits against governmental agencies. For instance, an analysis prepared for the Senate Committee on the Judiciary stated: ‘The purpose of the bill is to allow public entities to recover the cost of defending frivolous lawsuits brought against them.’ A Bill Digest of the Assembly Committee on the Judiciary stated: ‘Proponents contend that this bill will curb frivolous lawsuits because it will require plaintiffs who bring such actions to pay for some of the expense incurred by blameless defendants.’

“Statements in Legislative committee reports concerning statutory objects and purposes which are in accord with a reasonable interpretation of the statute serve as legitimate aids in determining Legislative intent. [Citation.] It will be presumed that the Legislature adopted the proposed legislation with the intent and meaning expressed in committee reports. [Citations.]

“The above-quoted statements which appear in the committee reports disclose that the purpose of Assembly Bill No. 3214, which became Code of Civil Procedure section 1038, was to allow public entities to recover costs incurred in defending frivolous lawsuits. ... [¶] ... [¶]

“Subdivision (c) of section 1038 provides that any party requesting defense costs under the statute waives any right to seek damages for malicious prosecution and that failure to seek such relief shall not be deemed a waiver of the right to pursue a malicious prosecution action. The waiver provisions in subdivision (c) show a recognition by the Legislature that the relief afforded by section 1038 is so similar to a malicious prosecution cause of action that an aggrieved party can only seek redress by one method or the other, but not both. [¶] . . . [¶]

“Inasmuch as the Legislature provided in subdivision (c) of section 1038 that a request for relief pursuant to the section operates as a waiver of a malicious prosecution action, we presume the Legislature intended that section *1290 1038 would provide a means of redress for acts similar to those for which damages are sought in a civil malicious prosecution action.” (Curtis v. County of Los Angeles (1985) 172 Cal.App.3d 1243, 1249-1251 [ 218 Cal.Rptr. 772 ].)

Given the above, a Code of Civil Procedure section 1038 motion takes the place of a malicious prosecution action. However, through the years, the statute has been amended. As our state’s highest court noted in 1998, “The [Code of Civil Procedure] section 1038 proceeding was not always a summary one. In its original version, section 1038, subdivision (a), directed the ‘fact finder’ to decide whether the action was brought with ‘reasonable cause’ and in ‘good faith.’ Under section 1038, subdivision (b), the trial court could ‘direct a separate trial at the conclusion of the proceeding on the issue of defense costs.’ [Citation.] The 1986 amendment to section 1038, however, directed ‘the court,’ rather than the ‘fact finder’ to determine whether the statutory elements were present, and eliminated the court’s power to order a separate trial on the question. [Citation.]” (Kobzoff v. Los Angeles County Harbor/UCLA Medical Center (1998) 19 Cal.4th 851, 857 [ 80 Cal.Rptr.2d 803 , 968 P.2d 514 ] (Kobzoff).)

Until this case, other appellate courts and our state’s highest court recognized that Code of Civil Procedure section 1038 “initially requires the trial court to determine whether [a plaintiff has] acted with reasonable cause and in the good faith belief that die law and facts stated a justifiable controversy.” 2 (Kob zoff, supra, 19 Cal.4th 851, 861 ; see Austin B. v. Escondido Union School Dist., supra, 149 Cal.App.4th at pp. 887-888; Carroll v. State of California (1990) 217 Cal.App.3d 134, 140 [ 265 Cal.Rptr. 753 ].) To that end, our state Supreme Court has said that “before denying a [Code of Civil Procedure] section 1038 motion, a court must find the plaintiff brought or maintained an action in the good faith belief in the action’s justifiability and with objective reasonable cause. [Citations.]” (Kobzoff, supra, at p. 862 .) I agree with the overwhelming express and implicit views of the other California appellate courts which have addressed this issue and find the language in the statute to be clear and mandatory. The trial court must determine whether Plaintiff brought or maintained the action in the good faith belief in the action’s justifiability and with objective reasonable cause. Because the trial court failed to state whether or not it had found that Plaintiff brought or maintained her action in the good faith belief in the action’s justifiability and with objective reasonable cause, I would reverse the order and remand for further proceedings with the directions that the trial court comply with the statutory requirements and state its findings on the record.

*1291 B. Code of Civil Procedure Section 2033.420

Alternatively, the City sought discovery sanctions pursuant to Code of Civil Procedure section 2033.420 for Plaintiff’s failure to admit a request for admission of a fact which was later proven to be true. Code of Civil Procedure section 2033.420 provides: “(a) If a party fails to admit the genuineness of any document or the truth of any matter when requested to do so under this chapter, and if the party requesting that admission thereafter proves the genuineness of that document or the truth of that matter, the party requesting the admission may move the court for an order requiring the party to whom the request was directed to pay the reasonable expenses incurred in making that proof, including reasonable attorney’s fees.

“(b) The court shall make this order unless it finds any of the following:

“(1) An objection to the request was sustained or a response to it was waived under Section 2033.290.

“(2) The admission sought was of no substantial importance.

“(3) The party failing to make the admission had reasonable ground to believe that that party would prevail on the matter.

“(4) There was other good reason for the failure to admit.”

The trial court denied the City’s request without making any explicit findings or stating any reasons. The City appeals and my colleagues find that explicit findings were unnecessary.

I disagree.

As the majority notes, we review the court’s findings for an abuse of discretion. (Wimberly v. Derby Cycle Corp. (1997) 56 Cal.App.4th 618, 637, fn. 10 [ 65 Cal.Rptr.2d 532 ].) However, because the trial court failed to state its findings, there is nothing for us to review. Accordingly, I would reverse the order and remand for further proceedings with the directions that the trial court comply with the statutory requirements and state its findings on the record.

*1292 For the above reasons, I concur only with the majority opinion affirming the trial court’s grant of summary judgment in favor of the City.

A petition for a rehearing was denied July 7, 2008, and the opinion was modified to read as printed above.

Mr. Anderson also claimed that the position of the luminaire contributed to the dangerousness of the intersection.

Even the appellate court in the Kobzojf case remanded the case to the trial court for further factual findings on “ ‘the issue of plaintiffs’ bad faith in bringing and maintaining the action.’ ” ( Kobzoff, supra, 19 Cal.4th 851, 855 .)