Second District, Division 6 Finds No Unreasonableness in Trial Court Awards.
“Scorched earth” is a frequently bandied phrase in litigation. However, if a trial court believes that you as a litigant have engaged in it, this strategy may cost you big when it comes time for reckoning fee/cost recovery to the prevailing party after occurrence of such carnage.
Glencoe v. AMA Construction & Real Estate, Case Nos. B204839 et al. (2d Dist., Div. 6 Dec. 6, 2010) (unpublished) well illustrates this result. There, putative buyers and sellers brought dueling specific performance/damages actions arising out of a failed real estate deal. Seller won and dismissed his cross-complaint. He then sought to recovery $943,543 in attorney’s fees (under a contractual fees clause in the real estate agreement) and $75,000 in costs. After requiring apportionment out of time spent on the cross-complaint, the trial court awarded prevailing seller $538,884 in fees and $16,876.69 in costs. Main reason for such a large award was buyer’s engagement in “scorched earth” litigation
The Second District, Division 6, in a 3-0 opinion authored by Presiding Justice Gilbert, affirmed.
Seller did prevail, with his cross-complaint being primarily defensive in nature. Apportionment was found reasonable as well as seller’s resort to multiple attorneys in the case (especially given the “scorched earth” tactics of his opponents). (See El Escorial Owners’ Assn. v. DLC Plastering, 154 Cal.App.4th 1337, 1365 (2007).)
That brought the appellate court to the costs award. That, too, was proper because the trial court found that certain costs were reasonably necessary for trial and that the deposition travel costs of a Northern California attorney for seller were authorized by the Code. (Thon v. Thompson, 29 Cal.App.4th 1546, 1548 (1994).)
HISTORY FUN--Looks to us that “scorched earth” military tactics originated with the Scythians, nomadic herders using the tactic to defeat King Darius the Great of Persia. The Scythians retreated into the depths of the Steppes, destroying food supplies and poisoning wells along the way. Closer to home and in time, General Sherman utilized this policy during the U.S. Civil War when he made his famous “March to the Sea” 
(as part of what many Southerners would describe as “the War of Northern Aggression”).
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