Knight

While bodysurfing in the ocean at Capitola, Mark W. Knight was gravely injured when wave action abruptly hurled him against a hard sand bottom. He sued the City of Capitola, the County of Santa Cruz, and the State of California. The trial court granted all three defendants’ motions for summary judgment. Knight does not appeal from the judgment in favor of the state. We shall accept the parties’ assumption that the court’s orders constituted judgments finally disposing of Knight’s actions against the city and the county. Knight appeals from the judgment for the city; he also appeals from so much of the judgment for the county as awarded the county attorney fees, under Code of Civil Procedure sections 128.5 and 1038, on the ground that Knight’s action against the county was maintained in bad faith and without reasonable cause. We shall affirm the judgments appealed from.

There is virtually no dispute as to the empirical facts reflected in the parties’ moving and responding papers.

The accident occurred in August 1987 at a beach, adjacent to Capitola, that faces south across Monterey Bay. Knight, a visitor to the area, had bodysurfed at other beaches. The technique…