Trespass: Civil Code Section 3334, Ejectment Statute, Does Allow For Recovery Of Costs But Not Attorney’s Fees

 

Absence of Fee Entitlement Language is Dispositive.

     Justice Ikola, in a trespass/nuisance/ejectment case involving an encroachment into neighboring land, started out Seraji v. Demirjian, Case No. G048611 (4^th Dist., Div. 3 July 17, 2014) (unpublished) this way: “It is often said that good fences make good neighbors. One might wonder whether there actually is such a correlation between good fences and good neighbors and, if so, whether causality runs in the opposite direction (i.e., maybe good neighbors build good fences). But it cannot be denied that a good fence accurately demarcating the boundary between the parties’ real properties in this case could have avoided substantial expense and grief.” (Slip Opn., p. 1.)

     Theodor Horydczak, photographer.  Circa 1920 – 1950.  Library of Congress.

     What happened is that owner of what was formerly undeveloped land in Laguna Beach successfully sued over an encroachment by a neighbor landowner, obtaining an order for removal of the encroachment and awarding damages under the various legal theories.

     The appellate court reversed the award of trespass/nuisance damages under a three-year statute of limitations, but found the ejectment claim was timely under a longer five-year statute of limitations.

     With respect to attorney’s fees, the trial court denied them to the prevailing party recovery under Civil Code section 3334, an ejectment statute providing: “The detriment caused by the wrongful occupation of real property … is deemed to include the value of the use of the property for the time of that wrongful occupation … and the costs, if any, of recovering the possession.” Because attorney’s fees is not specifically mentioned in the statute, the lower court properly refused to award them. (That v. Alders Maintenance Assn., 206 Cal.App.4^th 1419, 1428 (2012).)