Negligently Causing Brush Fire to Ranch Previously Used to Raise Livestock Gave Rise to Fee Recovery.
Code of Civil Procedure section 1021.9 mandates an award of reasonable attorney’s fees to the prevailing plaintiff “in any action to recover damages to personal or real property resulting from trespassing on lands either under cultivation or intended or used for the raising of livestock . . . .” This provision was at front stage and center of the next case we review.
In Kelly v. CB&I Constructors, Inc., Case No. B205735 (2d Dist., Div. 5 Nov. 19, 2009) (certified for publication), defendant negligently sparked a brush fire that caused significant damage to a ranch owned by plaintiff. The ranch was on rural horse property zoned for agricultural use and, in the past, had been use to breed a variety of animals, including birds, dogs, and horses (as well as hogs and chickens. Plaintiff also intended to use the property for livestock purposes, as corroborated by the structures, location, zoning and past use of the property. However, the property was not being used for raising livestock at the time of the fire. The jury awarded plaintiff significant damages for trespass, and the trial court later awarded him attorney’s fees of $756,900 in attorney’s fees under section 1021.9.
Defendant challenged the fee award primarily on the ground the property was not being used to raise livestock at the time of the wrong. However, the appellate panel affirmed the fee award, observing that “the statute requires only that the property be ‘intended’ for such use; [t]hat plaintiff used the property for livestock purposes in the past was probative of plaintiff’s intended use.” (Slip Opn., p. 25.) The fee award was justified under the circumstances.
Old Bridge at Tula. William Henry Jackson, photographer. Between 1880 and 1897. Library of Congress. Category: Livestock.