Special Fee Shifting Statute: Civil Harassment Prevailing Litigant Denied Appellate Fees And Costs In Heated Dispute Between Neighbors Over Defecating Dog

Above:  The Sweet Prospect Behind Us, 1789.  Library of Congress.

Both Parties To Blame, So No Appellate Fees To Prevailing Party Upon Review.

     Pets and animals seem to foster a lot of litigation—and, believe me, co-contributors Marc and Mike love their dogs. The next one is for you dog lovers, but the facts should be entertaining to anyone, whether they have pets or not.

     In Cervantes v. Fradet, Case No. D065721 (4^th Dist., Div. 1 July 29, 2015) (unpublished), neighbors got involved in a fracas over one neighbor’s dogs that got out while his 5 year granddaughter was cleaning out the dogs’ kennel. One of the dogs apparently defecated in the other neighbor’s yard, prompting the offended neighbor to jump the fence and smear feces over the rear quarter of the offensive neighbor’s truck while the offensive neighbor and granddaughter watched.

                                                    

                             Cervantes, Don Quixote tilting at windmills, by Gustave Dore.  Wikipedia.

      The offended neighbor tried to provoke a personal attack, but no one decided to bite. (Ugh – sorry!) Offensive neighbor filed a civil harassment restraining order against offended neighbor, an order which was granted including provisions that the offended neighbor not own/possess a firearm. Winning, offensive neighbor represented himself at the trial level.

     Losing, offended neighbor appealed, but to no appeal. However, offensive neighbor, who lawyered up, then moved for fees and costs as prevailing party on appeal. Well, this dog didn’t hunt upon review. (Ugh again!) Given that a fee award to a prevailing party in a civil harassment proceeding is discretionary, the appellate court found that both parties shared some blame for the dispute. Winning party entrusted his 5- year-old granddaughter with the responsibility to control dogs, one who did defecate on the neighbor’s property. Winning party was responsible for the defecating dog such that fees and costs on appeal should not, in the interest of justice, be awarded to him—the appellate court made this determination outright without a remand. So, goes to show you, appeal courts will make resolutions to end a controversy and with an eye toward what should be done on an overall “rough justice” basis.