Gamble

Section 1038 of the Code of Civil Procedure allows public entities to recover the costs (including attorneys’ fees) of defending against unmeritorious and frivolous lawsuits. The issue on this appeal is one of timing, and it presents itself because section 1038 provides (1) that an award of costs can only be made on noticed motion and after a hearing, and (2) that the court must determine the merits of the motion for costs at the time it grants a motion for summary judgment, or a motion for directed verdict, or a motion for judgment under section 631.8, or any nonsuit dismissing the moving party, but also provides (3) that the motion can be made at any time prior to the discharge óf the jury or entry of judgment. We find the statute ambiguous on the issue of timing, construe it to mean that a motion for costs should be filed at the earliest practical time “prior to the discharge of the jury or entry of judgment” (§ 1038, subd. (c)), and hold that the motion for costs must be heard by the same judge who hears the dispositive motion. We reverse.

Background

In March 1999, Donald Gamble sued the Los Angeles Department of Water and Power and Ralph Beckman (a meter reader…