Fee Denial By Trial Court Was Correct.
In a long unpublished decision that is good reading for practitioners involved in a prescriptive easement dispute, a trial court ultimately concluded that the plaintiffs owned a fee simple interest in a 40-foot strip of land running along the eastern boundary of their property and that adjacent defendant landowners had a prescriptive interest in the strip as a path for foot traffic (not a prescriptive easement as a road for vehicular traffic).
However, the trial court denied awarding any requested attorney’s fees to plaintiffs although they did prevail to some extent (and maybe more than defendants).
The fee denial decision was affirmed in Scheel v. Henderson, Case No. C062704 (3d Dist. Feb. 7, 2012) (unpublished).
Plaintiffs staked their fee request upon the “tort of another doctrine,” which we have a separate category for that can be searched on our home page. Even though expense of clearing title is a proper element of damages in a slander of title action so as to invoke the doctrine (Glass v. Gulf Oil Corp., 12 Cal.App.3d 412, 438 (1970)), plaintiffs’ problem was they did not plead it and did not prove a slander of title claim because there was no publication and the one communication was privileged in nature.
BLAWG BONUS: The co-contributors to this blawg, William M. ("Mike") Hensley and Marc Alexander, have published an article about attorney's fees as damages in California Litigation, the Journal of the Litigation Section, State Bar of California, Volume 21, Number 3, 2008, an all-theme issue devoted to the subject of "Damages." For a link to our article, see our November 13, 2008 post.