Gregory P. Regier, a colleague of Mike Hensley when he was at Jackson DeMarco Tidus & Peckenpaugh, and Mike won a case for citrus farming clients in Ventura County who were flooded by their neighboring farmers when the neighbors notched a watercourse on their property, resulting in various property damages and citrus production loss to clients. Greg/Mike’s clients prevailed on trespass and nuisance theories, winning compensatory awards of $255,598.14 on the trespass claim and other monies on the nuisance claim. The case is Hobsons v. Leavens, Ventura County Superior Court Case No. CIV 238746.
The trial judge denied defense motions for judgment notwithstanding the verdict and for new trial.
That brings us to the stage of the proceedings which this blog was created to report on: the fee motion, which was heard on May 14, 2008.
Little known to many litigators, California Code of Civil Procedure section 1021.9 provides in terse, eloquent fashion:
“In any action to recover damages to … real property resulting from trespassing on lands either under cultivation or intended or used for the raising of livestock, the prevailing plaintiff shall be entitled to reasonable attorney’s fees in addition to other costs, and in addition to any liability for damages imposed by law.”
So, having won, Greg and Mike presented a fee petition under section 1021.9 for over $784,000. The fee petition was supported by attorney declarations that attached monthly invoiced billings of a detailed nature.
The defense came back with lots of arguments, both procedural and factual in nature.
The procedural arguments that were advanced, and will be seen frequently in this area, can be easily dispatched:
*ARGUMENT: The trial court lacks jurisdiction to consider the fee petition because the underlying judgment is on appeal.
ANSWER: Wrong; the trial court has continuing jurisdiction. See Gregory v. State Board of Control, 73 Cal.App.4th 584, 599 n.8 (1999).
*ARGUMENT: The fee petition was untimely filed, because it was filed more than 15 days after the cost memorandum deadline.
ANSWER: Wrong; Cal. Rules Ct., rule 3.1702 (former rule 870.2) provides that the fee petition must be filed within the time to file an appeal, not the quicker timetable for routine costs memorandum, which is dealt with in rule 3.1700—the shorter 15 day deadline.
*ARGUMENT: The fee petitioner must prove that petitioner actually paid the fees for which recovery is sought from the other side.
ANSWER: Wrong; the fee petitioner need only show that the costs were “incurred” even if another outside party agreed to be primarily liable. See Lolley v. Campbell, 28 Cal.4th 367, 374 (2002); Beverly Hills Properties v. Marcolino, 221 Cal.App.3d Supp. 7, 11-12 (1990).
That brought the parties to the main challenge—the fees were unreasonable in nature.
The trial judge kept reminding the losing parties that they had heavily contested every legal and factual issue in the case and asked what they proposed the court should do.
The response was interesting, to say the least—knock down the civil litigator rates by two thirds because losing parties’ counsel charged at insurance defense rates. The trial judge challenged this as being unrealistic because the argument did not reflect the true marketplace, namely, noninsurance civil litigator rates. Support for the trial judge’s sentiments can be found in such cases as Trevino v. Gates, 99 F.3d 911, 925 (9th Cir. 1996); U.S. v. City & County of San Francisco, 748 F.Supp. 1416, 1431 (N.D.Cal. 1990), aff’d in relevant part sub nom., 976 F.2d 1539, 1547 (9th Cir. 1992); National Assn. of Concerned Veterans v. Secretary of Defense, 675 F.2d 1319 (D.C.Cir. 1982).
The trial judge did want Greg/Mike to answer if they needed to apportion fees between the trespass (fee basis) claim and the nuisance (no fee basis) claim. Mike answered “yes, but not much,” because the discovery and proof on each were “inextricably intertwined,” but went on to note that some hours were devoted exclusively to the nuisance claim while he was involved during trial.
The trial judge also expressed concerns about legal research and internal lawyer conferencing charges, which mirrors a “hot button” with many in-house attorneys when reviewing bills. However, the same judge did indicate that he saw many “NO CHARGE” entries, a mitigating factor which weighed in the winning parties’ favor. The judge indicated that he wanted to independently review the monthly bills for duplication, unreasonableness, and apportionment.
The judge took the matter under submission, and recently issued his order.
The result: Hobsons were awarded attorneys fees of $319,000. Judge Walsh reduced attorney hourly rates by about $50 (not the two thirds proposed by the defense), and also reduced the fee petition for (1) duplicative entries and (2) entries that went to the nuisance claims (and, under his reasoning, needed to be apportioned out and not counted for prevailing on the fee compensable trespass claim).
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