Eminent Domain: Fee-Shifting Award In Inverse Condemnation Cases Under CCP § 1036 Cannot Exceed Fees Actually Incurred Via Contingency Agreements With Prosecuting Attorneys

 

Salton Bay Marina Found Distinguishable, But Third District Disagrees If Its Reasoning Was Applicable In Determining Fee Award.

     The Third District in Pacific Shores Property Owners Assn. v. Dept. of Fish and Wildlife, Case No. C070201 (3d Dist. Jan. 20, 2016) (published) dealt with a situation where plaintiff in an inverse condemnation case was awarded $45,800 in attorney’s fees under Code of Civil Procedure section 1036 based on the fees actually incurred under a contingency agreement, although plaintiff requested lodestar fees against the state agency of $556,210. Both the trial and appellate courts rejected the request for higher fees.

     In doing so on appeal, the Third District determined that section 1036 only allows fee recovery for “fees actually incurred.” Plaintiff’s reliance on Salton Bay Marina, Inc. v. Imperial Irrigation Dist., 172 Cal.App.3d 914, 957-958 (1985) was found distinguishable, but the reviewing court disagreed with its reasoning to the extent it suggested that fees in excess of the amount the client actually incurred could be considered in awarding section 1036 fees. Instead, the appellate court adhered to its prior consistent reasoning in Andre v. City of West Sacramento, 92 Cal.App.4^th 532, 535-536 (2001). The fee award of $45,800, the lower amount, was affirmed.