Section 1021.9 Applies To Land Characteristic As A Whole, Not Just Portion Of Land Trespassed Upon; Pre-Offer Fees And Costs Did Not Disturb The Result Under CCP § 998.
In Hoffman v. Superior Ready Mix Concrete, L.P., Case No. D072929 (4th Dist., Div. 1 Dec. 19 2018) (published), plaintiff owned property intended to be used as a nursery with various plants next to a rock quarry. Plaintiff prevailed in litigation against the quarry on a trespass count, winning but losing some associated claims. The trial judge awarded plaintiff routine costs of $16,198.66 and attorney’s fees of $289,153.75 under CCP § 1021.9, which allows fees to a prevailing plaintiff (unilateral in nature) recovering damages “to personal or real property resulting from trespass on lands . . . under cultivation.”
The key legal issue was whether “lands … under cultivation” referred to the general characteristic of the overall land, or just the portion trespassed upon. The appellate court agreed with the trial judge that the general characteristic was determinative. Plaintiff was cultivating plants and intended to open a nursery sometime, and the statute could have specified differently with “a portion of lands” language which would have likely led to a different result.
No allocation was necessary because most of the claims, even some lost, related to the “core” trespass claim, such that apportionment was not mandatory. With respect to a reduction for a lack of success, that was indeed required under some statutes, but no indication that it applied to this specific unilateral fee-shifting statute.
Finally, the 998 issue was moot, because the pre-offer fees and costs well exceeded the $70,000 offer made by defendant quarry.
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