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Pinkwater v. San Francisco Bay Area Rapid Transit Dist.11/18/2005
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
San Francisco Bay Area Rapid Transit District (BART) appeals from the denial of its motion for defense costs under Code of Civil Procedure section 1038, following its successful motion for summary judgment of plaintiff Felicia Pinkwater's claims. Section 1038 allows certain defendants, including public entities, to recover the costs of defending frivolous civil actions under the California Tort Claims Act (Tort Claims Act) if the court determines the proceeding was not brought with "reasonable cause and in the good faith belief that there was a justifiable controversy under the facts and law . . . ." (§ 1038, subd. (a).)
The trial court denied the motion, finding that Pinkwater brought and maintained her action with reasonable cause, as evidenced by the fact that another judge issued a tentative ruling denying summary judgment.
We conclude that although summary judgment was properly granted and subsequently affirmed by this court, the tentative ruling denying summary judgment necessarily implies that there was at least some merit to Pinkwater's action. Accordingly, we affirm the judgment denying defense costs.
I. FACTUAL AND PROCEDURAL BACKGROUND
The facts of the underlying action are fully discussed in our opinion in Pinkwater I, the majority of which are not relevant to the instant appeal. The pertinent facts are as follows.
Pinkwater, a BART employee since 1988, filed a charge with the Equal Employment Opportunity Commission (EEOC) on December 18, 2001, complaining about BART's failure to return her to work following a period of disability. The Department of Fair Employment and Housing (DFEH) issued an immediate right-to-sue letter dated December 18, 2001.
In March 2002, Pinkwater also filed a petition pursuant to Labor Code section 132a with the Workers' Compensation Appeals Board (WCAB) for disability discrimination regarding her removal from work. On the day of trial, the parties agreed to a continuance to discuss settlement options. Stephen L. Turk represented BART and Robert E. Wood represented Pinkwater.
On November 21, 2002, Turk sent a letter enclosing BART's proposed settlement documents to Wood, which included the standard workers' compensation compromise and release form, an addendum to the release, and a separation agreement that addressed Pinkwater's claims under the California Fair Employment and Housing Act (FEHA). (Gov. Code, § 12900 et seq.) In his letter, Turk referenced that the documents were to be signed and forwarded to the WCAB. He stated that: "Once the documents are signed perhaps we can walk them through the Oakland WCAB next week."
On December 4, 2002, Wood sent Turk a letter discussing several changes to the release and separation agreement. His changes to the release included, among other things, over a year of additional salary as back pay in addition to the proposed settlement amount. He also wanted to eliminate the Civil Code section 1542 waiver in the separation agreement. In his letter to Turk, Wood noted that: " nless we are able to walk through the basic agreement by next week I will need to file a civil complaint on behalf of Ms. Pinkwater."
On December 12, 2002, Wood and Turk had a telephone conversation about the pending settlement. Wood asked Turk for something in writing stating BART's intention t
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