Costs/Eminent Domain/Prevailing Party: Inverse Condemnation Plaintiffs Obtaining Earlier Reversal Of Defense Summary Judgment Entitled To Routine Appellate Costs

 

However, Attorney’s Fees Award Was Premature Until Judgment or Settlement Obtained Under Inverse Condemnation Fee-Shifting Provision.

     In an earlier appeal, Plaintiffs had obtained a reversal of a defense summary judgment in an inverse condemnation case, with the appellate court directing that the lower court consider a request for fees under Code of Civil Procedure section 1036, which allows for fee-shifting under certain conditions, and directing that plaintiffs were also awarded their costs on appeal.

     The lower court, on remand, denied both requests, prompting a writ of mandate by plaintiffs.

     They won and lost in Hsu v. Superior Court (Riverside County Transp. Commn.), Case No. E059826 (4^th Dist., Div. 2 Dec. 30, 2013) (unpublished).

     The costs denial was erroneous because the appellate court had awarded costs on appeal to plaintiffs. However, different matter as to fees. Section 1036 only allows for an award of fees upon plaintiffs obtaining a judgment or settlement, neither of which had occurred. The fees request was premature and correctly denied at this stage of the case. (The appellate court directive was only that the lower court “consider” a fee request, not that plaintiffs were entitled to them at the point of consideration.)