Fee Motion Found Timely and Declaratory Relief Action Was “On the Contract” for Purposes of Justifying the Award.
We knew that this next case was going to be a crazy one, when Acting Presiding Justice Yegan wrote, “Within a year or so, [the] relationship [between neighbors] had deteriorated from a warm friendship to open hostility” and “The enmity between the parties continued unabated through 2005.” The litigation involved accusations of yelling at each, driving into pots with a car, placing a mailbox in a landscape easement, poisoning of a koi pond, undue car honking, hitting a neighbor with shoveled dirt, and a citizen’s arrest for battery (for which a neighbor was prosecuted but acquitted). This case rivals some of the antics on the T.V. oldie “Romper Room.”
In Sjoquist v. Nebroski, Case No. B209161 (2d Dist., Div. 6 June 22, 2010) (unpublished), one set of neighbors won $352,000 in compensatory damages and $100,000 in punitive damages for battery/emotional distress in litigation also having a declaratory relief count that requested declarations of rights under an easement agreement alleged to govern the parties (with there being a fees clause in the agreement). The trial court awarded prevailing neighbors $112,00 in attorney’s fees and $8,426 in costs. (As an aside, the losing neighbors got divorced, with wife filing two days after the jury verdicts were returned.) Losers appealed.
Besides losing the merits, they also lost the challenges to the fee award.
Losing parties argued that the motion for fees was not timely filed 60 days after notice of entry of judgment under Cal. Rules of Court, rule 3.1702(b)(1).) However, that argument was rejected because losing husband had filed a Chapter 7 bankruptcy that stayed any motion filings, with the fee motion being timely filed 59 days after relief was granted from the automatic stay.
Husband forfeited any challenge to the fee award by not opposing the fees motion at the trial court level. (In re Marriage of Falcone, 164 Cal.App.4th 814, 826 (2008).)
Wife, who did oppose the fee motion, did not persuade the appellate panel with her fee “merits” argument. The easement agreement did have a fee clause relating to any “court action” to “enforce the provisions of this Agreement,” with a declaratory/injunctive relief cause of action being “on the contract” for purposes of a fees award. (Kachlon v. Markowitz, 168 Cal.App.4th 316, 347-348 (2008).)
So, not only did losing husband and wife lose their trial and appellate challenges, but they also lost their marriage in the case of the feuding neighbors. (Also, the winning neighbors can seek their costs and further fees for prevailing on appeal!)