Land Under Cultivation Trespass Fee-Shifting Statute Involved.
Rathje v. Southern California Edison Co., Case No. B250166 (2d Dist., Div. 6 Oct. 21, 2015) (unpublished) is an interesting case involving nuisance, trespass by fire, and other claims arising when a lavender crop was destroyed when utility lines overhead struck one another from Santa Ana winds, causing electrical arcing that set Plaintiffs’ lavender field ablaze and destroyed their crop. Plaintiffs won a $1.820 million compensatory jury verdict, with the lower court subsequently awarding $1.636 million in attorney’s fees under Code of Civil Procedure section 1021.9. (That section provides “[i]n 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, the prevailing party shall be entitled to reasonable attorney’s fees.”)
On appeal, SCE was able to obtain a reversal of a $500,000 “piece” of the compensatory award for “costs to create” the lavender business because it was a double dip of the lost business profit award. That reversal required a relook at the fee award; however, the 2/6 DCA rejected SCE’s argument that section 1021.9 was void for vagueness.
Because only economic concerns were at issue (versus First Amendment concerns), vagueness is a hard argument to win because the statute must specify no standard of conduct in order to be held invalid. Here, it was clear that the commercial lavender operation on rural property falls with ambit of the “lands under cultivation” language, so the vague “as-applied” challenge failed. This was contrasted with a situation where an urban backyard with a garden was found not to fall within the “lands under cultivation” rubric.