CCP § 1036 Dictates Are Clear, With Any Other Revisions Being Legislative Matters.
As we all age, I am not sure we get any wiser (older, yes; wiser, a matter of judgment at best). When you get down to it, many judicial decisions are exercises in political science lessons--recognizing the proper division of power between the legislative, judicial, and executive branches. No more, no less. This next case is within this wheel-range of wisdom, so to speak.
Avenida San Juan Partnership v. City of San Clemente, Case Nos. G043479/G043534 (4th Dist., Div. 3 Dec. 14, 2011) (certified for publication) was (and still is, but much more narrowed in magnitude) a contentious, inverse condemnation battle going on for quite a while. Eventually, a lower court ruled that the City of San Clemente deprived owners of all economically viable uses of a parcel that owners wanted to be used for a residential development. This was, in essence, a regulatory taking, ruled the trial judge, awarding owners $1.3 million in damages on a “lowball” approach (we will get to that later). Although denying a new trial motion, the lower court did pick up on a decision indicating it should give City an option, which it did: either pay damages amounting to $1.67 million (the base judgment, plus other items inclusive of costs of $23,644.30 and attorney’s fees of $227,150) or rescind the land use restrictions.
Everyone appealed, with owners cross-appealing the sufficiency of the attorney’s fees award.
Owners won the merits, but there was a remand which implicated fees (likely more, if anything to owners) might be increased some even though they lost the merits of the fee challenges.
Code of Civil Procedure section 1036 was the operative statute, and did not aid owners on their merit challenges to the insufficiency (“too little”, we might add) of the lower court’s fee award. Because the statute addresses itself to fees “actually incurred,” the fees incurred by one of the owners (an attorney) could not be recouped (after all, he had no retention agreement or billings to owners), and the “actually incurred” language did not lend itself to a request for a multiplier enhancement (redundant we acknowledge, but we do it anyway when using the term “multiplier enhancement”). If the Legislature wants to rewrite section 1036 to allow for “recoverable fees” rather than “actually incurred fees,” so be it--it didn’t, and hasn’t yet, so the Court of Appeal was not going to legislate via judicial fiat. Owners‘ efforts to enhance the award were rebuffed, but there was hope--because the lower court “low balled” its fair market award in the first phase of the trial, the matter had to be remanded to see if the damages (and, hence, fees) should be higher.
Another political science lesson well learned, under the pen of authoring Acting Presiding Justice Rylaarsdam in this case when it came to construing California statutes where litigants wanted the courts to do something more than the plain meaning of the statute allowed.
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