Gonzales v. ABC Happy Realty, Inc.

Code of Civil Procedure section 1038 directs a trial court to assess costs against a party who has brought a proceeding for indemnity or contribution without good faith or reasonable cause. The question presented here is whether this statute authorizes the trial court to make a supplemental assessment for costs incurred in connection with an unsuccessful, but not frivolous, appeal. We conclude that section 1038 applies to appeals.

Background

After they were sued in connection with a sale of real property, appellants brought respondent into the litigation by filing a cross-complaint for indemnity. At the same time the trial court granted respondent’s motion for summary judgment, it found that appellants’ cross-complaint was not brought in good faith and with reasonable cause. The trial court awarded respondent defense costs pursuant to section 1038 in the amount of approximately $20,000. This court affirmed the award. (Gonzales v. ABC Happy Realty, Inc. (May 16, 1995) A062149 [nonpub. opn.].) The Supreme Court denied appellants’ petition for review.

Following issuance of this court’s remittitur, respondent moved for an award of “additional” and “further attorneys’ fees"…