4/2 Appellate Court Found Salton Bay Marina Persuasive on the Issue.
Although way too complicated to discuss in full, defendant lost but also won some aspects (including obtaining a reversal on a taking issue) in a complex eminent domain case. Among other things, plaintiff water district had to conditionally dismiss at one point based on a notice issue involving a belated resolution of necessity. Defendant argued that it should be awarded $15,000 in “litigation expenses” (which include attorney’s fees) under the eminent domain discretionary fee-shifting statute based on winning the notice issue that drew a conditional dismissal from the opposing side. (Code Civ. Proc., § 1260.120(c)(2).)
The trial court said “no,” because plaintiff’s attorneys were hired on a contingency fee basis which meant the fees were not “actually incurred” for purposes of the statute. It found Salton Bay Marina, Inc. v. Imperial Irrig. Dist., 172 Cal.App.3d 914, 953-954 (1985) persuasive on the point, although acknowledging that the trial court could have followed different paths to fee recovery in a contingency arrangement situation. (See People ex rel. Dept. of Transp. v. Yuki, 31 Cal.App.4th 1754, 1769 (1995).) The lower court did not abuse its discretion in taking the “no” pathway, with the appellate court too finding Salton Bay Marina to be persuasive in Elsinore Valley Municipal Water Dist. v. O’Doherty, Case No. E050909 (4th Dist., Div. 2 Aug. 29, 2012) (unpublished).
BLOG UNDERVIEW--We note that Jeff Robinson was one of the plaintiff’s attorneys involved at both the trial and appellate levels in the O’Doherty matter, and he has a fine small practice in Irvine and did get a partial reversal in a very complex case. Also, we would note that for you practitioners arguing an appeal in the Fourth District, Division 2, the court will issue you a tentative opinion before argument for purposes of focusing arguing advocates upon the issues found likely dispositive on review.
Comments