$50,148 Fee Award Gets Reversed.
Code of Civil Procedure section 1029.8(a) authorizes a fee award against an “unlicensed person who causes injury or damage to another person as a result of providing goods or performing services for which a license in required.” The next case explored whether fee recovery could be had not against the unlicensed contractor, but against the person utilizing the services of the contractor in a tree cutting damages action.
Rony v. Costa, Case Nos. A128596/A128836 (1st Dist., Div. 1 Oct. 26, 2012) (published) is a situation where one neighbor unaesthetically had an unlicensed contractor remove overhanging tree limbs from a neighboring Monterey cypress in order to make way for an outdoor pizza oven in neighbor’s back yard. Well, that proved to be a costly decision--likely eclipsing the delight of the pizzas--because a trial court awarded the impacted neighbor $22,530 in actual damages, doubled to $45,060 under a statutory double-damages provision after testimony demonstrated that the Monterey cypress was left somewhat denuded. However, the lower court also assessed $50,148 in attorney’s fees against losing neighbor, reducing the requested fees by 20%.
Losing neighbor appealed both the merits and fee judgments, losing on the merits but winning a reversal as to the fees award.
The reason is that the statutory language in section 1029.8 is only directed against the unlicensed contractor, who was not a party to the suit. The appellate court determined that the statutory language was clear, that the Legislature knew how to impose vicarious liability (but not do so in this area), and that the general respondeat superior statute (Civ. Code, § 2338) did not provide a basis to engraft vicarious fee liability under section 1029.8.